Exhibit 10.11
STANDARD OFFICE LEASE
ARTICLE 1.00 BASIC LEASE TERMS
1.01 Parties. This lease agreement ("Lease") is entered into by and
between the following Lessor and Lessee:
2221 Bijou Limited Liability Company ("Lessor")
a Colorado Limited Liability Company
American Teleconferencing Service, Ltd. ("Lessee")
1.02 Leased Premises. In consideration of the rents, terms, provisions and
covenants of this Lease, Lessor hereby leases, lets and demises to Lessee the
following described premises ("leased premises"):
50,000 Square Feet (Approximate sq. ft.
"phased-in as per Rent Schedule -
Addendum A
The Chidlaw Building (Name of building or project)
0000 Xxxx Xxxxx Xxxxxx (Xxxxxx address/suite number)
Colo Spgs, CO 80909 (City, State, and Zip code)
1.03 Leased Premises. Subject to and upon the conditions set forth herein,
including Article 11.05, the term of this lease shall commence on 120 days after
Lessee's acceptance of plans and specifications or Lessor's notice as set forth
in Article 6.01 and shall terminate 120 months thereafter.
1.04 Base Rent and Security Deposit. Base rent is shown on Addendum A.
Security deposit is $12,500.00.
1.05 Addresses.
Lessor's Lessee's
2221 Bijou Limited Liability Co. American Teleconferencing Services, Ltd.
x/x Xxxxxxxxx Xxxxxxxxxx 0000 Xxxx Xxxxx Street
P.O. Box 158 Colorado Springs, CO 80909
Xxxxxx, XX 00000
1.06 Permitted Use. Office and related uses. Tenant shall have access and
use availability on a 24-hour per day basis during the Lease term.
ARTICLE 2.00 RENT
2.01 Base Rent. Lessee agrees to pay monthly as base rent during the term
of this Lease the sum of money set forth in Section 1.04 of this Lease, which
amount shall be payable to Lessor at the address shown above. One monthly
installment of rent shall be due and payable on the date of occupancy by Lessee
for the first month's rent and a like monthly installment shall be due and
payable on or before the first day of each calendar month, succeeding the
commencement date or completion date during the term of this Lease; provided, if
the commencement date or the completion date should be a date other than the
first day of a calendar month, the monthly rental set forth above shall be
prorated to the end of that calendar month, and all succeeding installments of
rent shall be payable on or before the first day of each succeeding calendar
month during the term of this Lease. Lessee shall pay, as additional rent, all
other sums due under this Lease.
2.02 Operating Expenses. In the event, Lessor's operating expenses for the
building and/or project of which the leased premises are a part shall, in any
calendar year during the term of this Lease, exceed the sum of $1.18 per square
foot, Lessee agrees to pay as additional rent Lessee's pro rata share of such
excess operating expenses. Lessor may invoice Lessee monthly for Lessee's pro
rata share of the estimated operating expenses for each calendar year, which
amount shall be adjusted each year based upon anticipated operating expenses.
Within ninety days following the close of each calendar year, Lessor shall
provide Lessee an accounting showing in reasonable detail all computations of
additional rent due under this section. In the event the accounting shows that
the total of the monthly payments made by Lessee exceeds the amount of
additional rent due by Lessee under this section, the accounting shall be
accompanied by a refund. In the event the accounting shows that the total of
the monthly payments made by Lessee is less than the amount of additional rent
due by Lessee under this section, the accounting shall be accompanied by an
invoice for the additional rent. Notwithstanding any other provision in this
Lease, during the year in which the Lease terminates, Lessor, prior to the
termination date, shall have the option to invoice Lessee for Lessee's pro rata
share of the excess operating expenses based upon the previous year's accounting
expenses. If this Lease shall terminate on a day other than the last day of a
calendar year, the amount of any additional rent payable by Lessee applicable to
the year in which such termination shall occur shall be pro rated on the ratio
that the number of days from the commencement of the calendar year to and
including the termination date bears to 365. Lessee shall have the right, at
its own expenses and within a reasonable time, to audit Lessor's books relevant
to the additional rent payable under this section. Lessee agrees to pay any
additional rent due under this section within twenty (20) days following receipt
of the invoice or accounting showing additional rent due.
2.03 Definition of Operating Expenses. The term "operating expenses"
includes all expenses incurred by Lessor with respect to the maintenance and
operation of the building of which the leased premises are a part, including,
but not limited to, the following: maintenance, repair and replacement costs:
electricity, fuel water, sewer, gas and common area utility charges; window
washing; trash removal; landscaping and pest control; management fees, wages and
benefits payable to employees of Lessor whose duties are directly connected with
the operation and maintenance of the building; all services, supplies, repairs,
replacements, or other expenses
for maintaining and operating the building or project including parking and
common areas; the cost, including interest, amortized over its useful life, of
any capital improvement made to the building by Lessor after the date of this
Lease which is required under any governmental law or regulation that was not
applicable to the building at the time it was constructed; the cost, including
interest, amortized over its useful life, of installation of any device or other
equipment which improves the operating efficiency of any system within the
leased premises and thereby reduces operating expenses; all other expenses which
would generally be regarded as operating and maintenance expenses which would
reasonably be amortized over a period not to exceed five years; all real
property taxes and installments of special assessments, including dues and
assessments by means of deed restrictions and/or owners' associations which
accrue against the building of which the leased premises are a part during the
term of this Lease and all insurance premiums Lessor is required to pay or deems
necessary to pay, including public liability insurance, with respect to the
building. The term operating expenses does not include the following: repairs,
restoration or other work occasioned by fire, wind, the elements or other
casualty; income and franchise taxes of Lessor; expenses incurred in leased to
or procuring of lessees, leasing commissions, advertising expenses and expenses
for the renovating of space for new lessees; interest or principal payments on
any mortgage or other indebtedness of Lessor; compensation paid to any employee
of Lessor above the grade of property manager; any depreciation allowance or
expense; or operating expenses which are the responsibility of Lessee.
2.04 Late Payment Charge. Other remedies for nonpayment of rent
notwithstanding, if the monthly rental payment is not received by Lessor on or
before the fifteenth (15th) day of the month for which the rent is due, of if
any other payment due Lessor by Lessee is not received by Lessor on or before
the tenth day of the month next following the month in which Lessee was
invoiced, a late payment charge of five percent of such past due amount shall
become due and payable in addition to such amounts owed under this lease.
2.05 Increase in Insurance Premiums. If an increase in any insurance
premiums paid by Lessor for the building is caused by Lessee's use of the leased
premises in a manner other than as set forth in Section 1.06, or if Lessee
vacates the leased premises and causes an increase in such premiums, then Lessee
shall pay as additional rent the amount of such increase to Lessor.
2.06 Security Deposit. The security deposit set forth above shall be held
by Lessor for the performance of Lessee's covenants and obligations under this
Lease, it being expressly understood that the security deposit shall not be
considered an advance payment of rental or a measure of Lessor's damage in case
of default by Lessee. Upon the occurrence of any event of default by Lessee,
Lessor may, from time to time, and after the giving of notice as provided herein
and should Lessee fail to cure, without prejudice to any other remedy, use the
security deposit tot he extent necessary to make good any arrears of rent, or to
repair any damage or injury, or pay any expense or liability incurred by Lessor
as a result of the event of default or breach of covenant, and any remaining
balance of the security deposit shall be returned by Lessor to Lessee upon
termination of this Lease. If any portion of the security deposit is so used or
applied, Lessee shall upon twenty days written notice from Lessor, deposit with
Lessor by cash or cashier's check an amount sufficient to restore the security
deposit to its original amount.
2.07 Holding Over. In the event that Lessee does not vacate the leased
premises upon the expiration or termination of this Lease, Lessee shall be a
tenant at will for the holdover period of all of the terms and provisions of
this Lease shall be applicable during that period, except that Lessee shall pay
Lessor as base rental for the period of such holdover an amount equal to two
times the base rent which would have been payable by Lessee had the holdover
period been a part of the original term of this Lease. In the event of
holdover, Lessee agrees to vacate and deliver the leased premises to Lessor upon
Lessee's receipt of notice from Lessor to vacate. The rental payable during the
holdover period shall be payable to Lessor on demand. No holding over by
Lessee, whether with or without the consent of Lessor, shall operate to extend
the term of this Lease.
ARTICLE 3.00 OCCUPANCY AND USE
3.01 Use. Lessee warrants and represents to Lessor that the leased
premises shall be used and occupied only for the purpose as set forth in Section
1.06. Lessee shall occupy the leased premises, conduct its business and use
reasonable efforts to control its agents, employees, invitees and visitors in
such a manner as is lawful, reputable and will not create a nuisance. Lessee
shall use reasonable efforts to not permit any operation which emits any odor or
matter which intrudes into other portions of the building, use any apparatus or
machine which makes undue noise or causes vibration in any portion of the
building or otherwise interfere with, annoy or disturb any other lessee in its
normal business operations or Lessor in its management of the building. Lessee
shall neither permit any waste on the leased premises nor allow the leased
premises to be used in any way which would, in the reasonable opinion of Lessor,
be extra hazardous on account of fire or which would in any way increase or
render void the fire insurance on the building. It is expressly agreed that the
leased premises do not include land beneath nor any space above the finished
ceiling level of the premises, provided that Lessee shall have the non-exclusive
right to use a portion of such space for the location of Lessee's construction
and equipment serving the leased premises subject to reasonable approval of
Lessor as to location and installation.
3.02 Signs. No sign of any type or description shall be erected, placed or
painted in or about the leased premises or project except those signs submitted
to Lessor in writing and reasonably approved by Lessor in writing, and which
signs are in conformance with Lessor's reasonable sign criteria established for
the project. All interior and exterior signs for tenant's use shall be at
tenant's sole cost and expense but shall be included in the tenant improvement
allowance provided by Landlord as set forth in Addendum B.
3.03 Compliance with Laws, Rules and Regulations. Lessee, at Lessee's sole
cost and expense, shall comply with all laws, ordinances, orders, rules and
regulations or state, federal, municipal or other agencies or bodies having
jurisdiction over the use, condition or occupancy of the leased premises. Lessee
will comply with the rules and regulations of the building adopted by Lessor
which are set forth on a schedule attached to this Lease. Lessor shall have the
right at all times to change and amend the rules and regulations in any
reasonable manner as may be deemed advisable for the safety, care, cleanliness,
preservation of good order and operation or
use of the building or the leased premises. All changes and amendments to the
rules and regulations of the building will be sent by Lessor to Lessee in
writing and shall thereafter be carried out and observed by Lessee.
3.04 Warranty of Possession. Lessor warrants that it has the right and
authority to execute this Lease, and Lessee, upon payment of the required rents
and subject to the terms, conditions, covenants and agreements contained in this
Lease, shall have possession of the leased premises during the full term of this
Lease as well as any extension or renewal thereof. Lessor shall not be
responsible for the accts or omissions of any other lessee or third party that
may interfere with Lessee's use and enjoyment of the leased premises.
3.05 Inspection. Lessor or its authorized agents shall at any and all
reasonable times and upon reasonable notice to Lessee have the right to enter
the leased premises to inspect the same, to supply janitorial service or any
other service to be provided by Lessor, to show the leased premises to
prospective purchasers or lessees, and to alter, improve or repair the leased
premises or any other portion of the building at reasonable times and upon
reasonable notice. Lessee hereby waives any claim for damages for injury or
inconvenience to or interference with Lessee's business, any loss or occupancy
or use of the leased premises, and any other loss occasioned thereby. Lessor
shall at all times have and retain a key with which to unlock all doors in upon
and about the leased premises at reasonable times and upon reasonable notice.
Lessee shall not change Lessor's lock system or in any other manner prohibit
Lessor from entering the leased premises at reasonable times and upon reasonable
notice. Lessor shall have the right to use any and all reasonable means which
Lessor may deem proper to open any door in an emergency without liability
therefor.
ARTICLE 4.00 UTILITIES AND SERVICE
4.01 Building Services. Lessor shall provide water and electricity for
Lessee during the term of this Lease. Lessee shall pay all telephone charges.
Lessor shall furnish Lessee hot and cold water at those points of supply
provided for general use of other lessees in the building, central heating and
air conditioning in season (at times Lessor normally provides these services to
other lessees in the building, and at temperatures an in amounts as are
considered by Lessor to be standard or in compliance with any governmental
regulations). Electric service shall be separately metered to the leased
premises to assist in billing Lessee for its electrical consumption. Lessor
shall also provide routine maintenance, painting and electric lighting service
for all public areas and special service areas of the building in the manner and
to the extent deemed by Lessor to be reasonably standard. Should any of the
equipment or machinery break down, or for any cause cease to function properly,
Lessor shall use reasonable diligence to repair the same promptly, but Lessee
shall have no claim for rebate of rent on account of any interruption in service
occasioned from the repairs. Lessor reserves the right from time to time to
make changes in the utilities and services provided by Lessor to the building.
4.02 Theft or Burglary. Lessor shall not be liable to Lessee for losses to
Lessee's property or personal injury caused by criminal acts or entry by
unauthorized persons into the leased premises or the building.
4.03 Janitorial Service. Lessor shall furnish janitorial services to the
public areas of the building three to five times per week during the term of
this Lease, excluding holidays. Lessee shall contract and pay for janitorial
services to its leased premises.
4.04 Excessive Utility Consumption. Lessee shall pay all utility costs
occasioned by high electrical consumption electrodata processing machines,
telephone equipment, computers and other equipment of high electrical
consumption, including without limitation, the cost of installing, servicing and
maintaining any special or additional inside or outside wiring or lines, meters
or submeters, transformers, poles, air conditioning costs, or the cost of any
other equipment necessary to increase the amount or type of electricity or power
available to the leased premises. Notwithstanding the foregoing, standard P.C.,
telephone equipment and other similar standard office equipment shall not be
deemed high electrical consumption equipment.
4.05 Window Covering. Lessor shall furnish and install window coverings on
all exterior windows to maintain a uniform exterior appearance. Lessee shall not
remove or replace these window coverings or install any other window covering
which would affect the exterior appearance of the building. Lessee may install
lined or unlined over draperies in the interior sides of he Lessor furnished
window coverings for interior appearance or to reduce light transmission,
provided such over draperies do not affect the exterior appearance of the
building or affect the operation of the building's heating, ventilating and air
conditioning systems.
4.06 Charge for Service. All costs of Lessor for providing the services
set forth in Article 4.00 (except those charges paid by Lessee pursuant to
Section 4.04) shall be subject to the additional rent provisions in Section
2.02.
ARTICLE 5.00 REPAIRS AND MAINTENANCE
5.01 Lessor Repairs. Lessor shall not be required to make any improvements
(except the initial Lessor's improvements required in Article 6.01 and Addendum
B), replacements or repairs of any kind or character to the leased premises or
the project during the term of this Lease except as are set forth in this
section. Lessor shall maintain only the roof, foundation, parking and common
areas, the structural soundness of the exterior walls, doors, corridors, windows
and other structures or equipment serving the leased premises. Lessor's cost of
maintaining and repairing the items set forth in this section are subject to the
additional rent provisions in Section 2.02. Lessor shall not be liable to
Lessee, except as expressly provided in this Lease, for any damage or
inconvenience, and Lessee shall not be entitled to any abatement or reduction of
rent by reason of any repairs, alterations or additions made by Lessor under
this Lease.
5.02 Lessee Repairs. Lessee shall, at its own cost and expense, repair and
replace any damage to injury to all or any part of the leased premises caused by
any act or omission of Lessee or Lessee's agents, employees, invitees, licensees
or visitors; provided, however, if
Lessee fails to make the repairs or replacements promptly, Lessor may, at its
option, after giving notice to Lessee, and after Lessee having failed to make
such repairs or replacements within twenty (20) days of the date of such notice,
make reasonable repairs or replacements, and the cost of such repairs or
replacements shall be charged to Lessee as additional rent and shall become
payable by Lessee with the payment of the rent next due hereunder. Lessor may
make emergency repairs without prior notice to Lessee.
5.03 Request for Repairs. All request for repairs or maintenance to the
leased premises that are the responsibility of Lessor pursuant to any provision
of this Lease must be made in writing to Lessor at the address in Section 1.05.
5.04 Lessee Damages. Lessee shall not damage any portion of the leased
premises or building, and at the termination of this Lease, by lapse of time or
otherwise, Lessee shall deliver the leased premises to Lessor in as good
condition as existed a the commencement date of this Lease, ordinary wear and
tear excepted. The cost and expense of any repairs necessary to restore the
condition of the leased premises shall be borne by Lessee.
ARTICLE 6.00 ALTERATIONS AND IMPROVEMENTS
6.01 Lessor Improvements. Lessor will complete the construction of the
improvements to the leased premises in accordance with plans and specifications
agreed to by Lessor and Lessee, which plans and specifications are made a part
of this Lease by reference. Any changes or modifications to the approved plans
and specifications shall be made and accepted by written change order or
agreement signed by Lessor and Lessee and shall constitute an amendment to this
Lease. Either party may declare this Lease null and void if the plans and
specifications are not mutually approved, despite the best efforts of the
parties on or before forty-five (45 days after the execution date of this Lease.
Lessor shall bear the expense of its architect for the Lessor improvements and
Lessee shall bear the expenses of its space planning consultant.
6.02 Lessee Improvements. Lessee shall not make or allow to be made any
alterations or physical additions in or to the leased premises without first
obtaining the written consent of Lessor, which consent shall not be unreasonably
withheld. Any alterations, physical additions or improvements to the leased
premises made by Lessee shall at once become the property of Lessor and shall be
surrendered to Lessor upon the termination of this Lease provided that Lessee
shall be entitled to retain the property listed on Exhibit A attached hereto,
and provided further that, Lessor, at its option, may require Lessee to remove
any physical additions and/or repair any alterations in order to restore the
leased premises to the condition existing at the time Lessee took possession,
reasonable wear and tear excepted, all costs of removal and/or alterations to be
borne by Lessee. This clause shall not apply to moveable equipment of furniture
owned by Lessee, which may be removed by Lessee at the end of the term of this
Lease if Lessee is not then in default and if such equipment and furniture are
not then subject to any other rights, liens and interests of Lessor.
ARTICLE 7.00 CASUALTY AND INSURANCE
7.01 Substantial Destruction. If the leased premises should be totally
destroyed by fire or other casualty, or if the leased premises should be damaged
so that rebuilding cannot reasonably be completed within ninety working days
after the date for written notification by Lessee to Lessor of the destruction,
this Lease shall terminate and the rent shall be abated for the unexpired
portion of the Lease, effective as of the date of the written notification.
7.02 Partial Destruction. If the leased premises should be partially
damaged by fire or other casualty, and rebuilding or repairs can reasonably be
completed within ninety working days from the date of written notification by
Lessee to Lessor of the destruction, this Lease shall not terminate, and Lessor
shall at its sole risk and expense proceed with reasonable diligence to rebuild
or repair the building or other improvements substantially the same condition in
which they existed prior to the damage. If the leased premises are to be
rebuilt or repaired and are untenantable in whole or in part following the
damage, and the damage or destruction was not caused or contributed to by act or
negligence of Lessee, its agents, employees, invitees or those for whom Lessee
is responsible, the rent payable under this Lease during the period for which
the leased premises are untenantable shall be adjusted to such an extent as may
be fair and reasonable under the circumstances. In the event that Lessor fails
to complete the necessary repairs or rebuilding within ninety working days from
the date of written notification by Lessee to Lessor of the destruction, Lessee
may at its option terminate this Lease by delivering written notice of
termination to Lessor, whereupon all rights and obligations under this Lease
shall cease to exist.
7.03 Lessee's Insurance. Lessee shall, at its sole expense, maintain in
effect at all times during the Term insurance coverage with limits not less than
those set forth below with insurers licensed to do business in the State of
Colorado: a) Workers Compensation Insurance - minimum limit as defined by
Statute and as same may be amended from time to time; b) Employer's Liability
Insurance-minimum limit $100,000; c) and Commercial General, Liability and
Bodily Injury/Property Damage Insurance, on a combined single limit basis, with
limits of not less than $500,000 per occurrence and with annual aggregate limits
of not less than $1,000,000. These policies shall be on a form acceptable to
Lessor, endorsed to include Lessor as an additional insured, state that the
insurance is primary over any insurance carried by Lessor, and the commercial
general liability policy shall include the following coverages: a)
premises/operations; b) independent contractors; c) broad form contractual in
support of the indemnity section of this lease; and, d) personal injury
liability.
If Lessee does not procure insurance as required, Lessor may, upon
reasonable advance written notice to Lessee, cause this insurance to be issued,
and Lessee shall pay to Lessor the
premium for this insurance within twenty (20) days of Lessor's demand, plus
interest at the highest lawful rate for a loan of like amount from the date of
payment by Lessor until repaid by Lessee.
7.03.01 Lessor's Insurance. Lessor shall maintain at all times during the
term of this Lease form and after substantial completion: a) standard all-risk
fire and casualty insurance, covering the building in amounts at lease equal to
the full replacement cost of the building at the time in question, but in no
event less than such coverage as is required to avoid co-insurance provisions;
b) comprehensive public liability insurance; c) employer's liability insurance;
d) excess liability insurance over the insurance required by subsection C of
this section; e) worker's compensation insurance in statutory limits; and, f)
such other insurance coverage as is customarily carried in respect of comparable
buildings. The limits shall be increased by Landlord from time to time during
the term of this lease to at least such minimum limits as shall then be
customary in respect of comparable buildings.
7.03.02 General Requirements. All policies of insurance required under
this article shall provide that they will not be canceled upon less than thirty
(30) days prior written notice to Lessor and Lessee. Each party shall furnish to
the other a certificate or certificates of insurance certifying that the
insurance coverage required is in force, if requested by the other party. The
coverage shall be issued by companies licensed to do business in the State of
Colorado and otherwise reasonably satisfactory to the parties. Not less than
thirty (30) days prior to expiration of the coverage, renewal policies or
certificates of insurance evidencing renewal shall be provided. Any insurance
required by the terms of this Lease may be under a blanket policy (or policies)
covering other properties of Lessor or Lessee and/or their related or affiliated
corporations. If such insurance is maintained under a blanket policy, the
respective party shall procure and deliver to the other party a statement from
the insurer or general agent of the insurer setting forth the coverage
maintained and the amount thereof allocated to the risk intended to be insured
hereunder.
7.04 Waiver of Subrogation. Anything in this Lease to the contrary
notwithstanding, Lessor and Lessee hereby waive and release each other of and
from any and all right of recover, claim, action or cause of action, against
each other, their agents, offices and employees, for any loss or damage that may
occur to the leased premises, improvements to the building which the leased
premises are a part, or personal property within the building, by reason of fire
or the elements, regardless of cause or origin, including negligence of Lessor
or Lessee and their agents, officers and employees. Lessor and Lessee agree
immediately to give their respective insurance companies which have issued
policies of insurance covering all risk of direct physical loss, written notice
of the terms of the mutual waivers contained in this section, and to have the
insurance policies properly endorsed, if necessary, to prevent the invalidation
of the insurance coverages by reason of the mutual waivers.
7.05 Hold Harmless. Lessor shall not be liable to Lessee's employees,
agents, invitees, licensees or visitors, or to any other person, for an injury
to person or damage to property on or about the leased premises caused by any
act or omission of Lessee, its agents, servants or employees, or of any other
person entering upon the leased premises under express or implied invitation by
Lessee, or caused by the improvements located on the leased premises becoming
out of repair, the failure or cessation of any service provided by Lessor
(including security service and devices), or caused by leakage of gas, oil,
water or steam or by electricity emanating from the leased premises. Lessee
agrees to indemnify and hold harmless Lessor of and from any loss, attorney's
fees, expenses or claims arising out of any such damage or injury.
Lessee shall not be liable to Lessor's employees, agents, invitees, licensees or
visitors, or to any other person, for any injury to person or damage to property
on or about the leased premises and caused solely by an act or omission of
Lessor, its agents, servants or employees. Lessor agrees to indemnify and hold
harmless Lessee of and from any loss, attorney's fees, expenses or claims
arising out of any such damage or injury.
ARTICLE 8.00 CONDEMNATION
8.01 Substantial Taking. If all or a substantial part of the leased
premises are taken for any public or quasi-public use under any government law,
ordinance or regulation, or by right of eminent domain or by purchase in lieu
thereof, and the taking would prevent or materially interfere with the use of
the leased premises for the purpose for which it was then being used, this Lease
shall terminate and the rent shall be abated during the unexpired portion of
this Lease effective on the date physical possession is taken by the condemning
authority. Lessee shall have no claim to the condemnation award or proceeds in
lieu thereof.
8.02 Partial Taking. If a portion of the leased premises shall be taken
for any public or quasi-public use under any governmental law, ordinance or
regulation, or by right of eminent domain or by purchase in lieu thereof, and
this Lease is not terminated as provided in Section 8.01 above, Lessor shall at
Lessor's sole risk and expense, restore and reconstruct the building and other
improvements on the leased premises to the extent necessary to make it
reasonably tenantable. The rent payable under this Lease during the unexpired
portion of the term shall be adjusted to such an extent as may be fair and
reasonable under the circumstances. Lessee shall have no claim to the
condemnation award or proceeds in lieu thereof.
ARTICLE 9.00 ASSIGNMENT OR SUBLEASE
9.01 Lessor Assignment. Lessor shall have the right to sell, transfer or
assign, in whole or in part, its rights and obligations under this Lease and in
the building. Any such sale transfer or assignment shall operate to release
Lessor from any and all liabilities under this Lease arising after the date of
such sale, assignment or transfer.
9.02 Lessee Assignment. Lessee shall not assign, in whole or in part, this
Lease, or allow it to be assigned, in whole or in part, by operation of law or
otherwise (including without limitation by transfer of a majority interest of
stock, merger or dissolution, which transfer of majority interest of stock,
merger or dissolution shall be deemed an assignment) or mortgage or pledge the
same, or sublet the leased premises, in whole or in part, without the prior
written consent of Lessor, which consent shall not be unreasonable withheld or
delayed, and in no event shall any such assignment or sublease ever release
Lessee or any guarantor from any obligation or liability hereunder. No assignee
or sublessee of the leased premises or any portion thereof may assign or sublet
the leased premises or any portion thereof without the written consent of
Lessor, which consent shall not be unreasonably withheld.
9.03 Conditions of Assignment. If Lessee desires to assign or sublet all
or any part of the leased premises, it shall so notify Lessor at least thirty
days in advance of the date on which Lessee desires to make such assignment or
sublease. Lessee shall provide Lessor with a copy of the proposed assignment or
sublease and such information as Lessor might reasonably request concerning the
proposed sublessee or assignee to allow Lessor to make informed judgments as to
the financial condition, reputation, operations and general desirability of the
proposed sublessee or assignee. Within fifteen days after Lessor's receipt of
Lessee's proposed assignment or sublease and all required information concerning
the proposed sublessee or assignee, Lessor shall have the following options: (1)
consent to the proposed assignment of sublease, or (2) refuse, in its reasonable
determination to consent to the proposed assignment or sublease, which refusal
shall be deemed to have been exercised unless Lessor gives Lessee written notice
providing otherwise. Upon the occurrence of an event of default, if all or any
party of the leased premises are then assigned or sublet, Lessor, in addition to
any other remedies provided by this lease or provided by law may, at its option,
collect directly from the assignee or sublessee all rents becoming due to Lessee
by reason of the assignment of sublease, and Lessor shall have a security
interest in all properties on the leased premises to secure payment of such
sums. Any collection directly by Lessor from the assignee or sublessee shall not
be construed to constitute a novation or a release of Lessee or any guarantor
from the further performance of its obligations under this Lease.
9.04 Rights of Mortgagee. If the interests of Lessor under this Lease
shall be transferred by reason of foreclosure of other proceedings for
enforcement of any first mortgage or deed of trust on the leased premises,
Lessee shall be bound to the transferee (sometimes called the "Purchaser") under
the terms, covenants and conditions of this Lease for the balance of the term
remaining, including any extensions or renewals, with the same force and effect
as were Lessor
under this Lease, and Lessee agrees to attorn to the Purchaser, including the
first mortgagee under any such mortgage if it be the Purchaser, as its Lessor.
The Lease shall remain in effect upon any foreclosure of, or purchase of, the
building, so long as the Lessee is not then in default thereunder. Lessor shall
use its best efforts to obtain an Attornment and Subordination Agreement, in a
form acceptable to Lessee, between the parties and the existing mortgagee within
ten (10) days after the execution hereof. Should the Agreement not be timely
obtained, either party may declare this Lease null and void upon written notice
to the other party posted within ten (10) days after the execution of the ten
(10) day period to provide the Agreement.
9.05 Estoppel Certificates. Lessee agrees to furnish, at reasonable
times, within twenty days after receipt of a request from Lessor or Lessor's
mortgage, a statement certifying, if applicable, the following: Lessee is in
possession of the leased premises; the leased premises are acceptable; the Lease
is in full force and effect; the Lease is unmodified; Lessee claims no present
charge, lien, or claim of offset against rent; the rent is paid for the current
month, but is not prepaid for more than one month and will not be prepaid for
more than one month in advance; there is no known existing default by reason of
some act or omission by Lessor; and such other matters as may be reasonably
required by Lessor or Lessor's mortgagee. Lessee's failure to deliver such
statement, in addition to being a default under this Lease, shall be deemed to
establish conclusively that this Lease is in full force and effect except as
declared by Lessor, that Lessor is not in default of any of its obligations
under this Lease, and that Lessor has not received more than one month's rent in
advance.
ARTICLE 10.00 DEFAULT AND REMEDIES
10.01 Default by Lessee. The following shall be deemed to be events of
default by Lessee under this Lease: (1) Lessee shall fail to pay when due any
installment of rent or any other payment required pursuant to this Lease. Lessee
shall be in default if rent is not paid by the first day of each month. However,
Lessee shall have the right to cure said default until any eviction order be
issued by a court of competent jurisdiction; (2) Lessee shall abandon any
substantial portion of the leased premise; (3) Lessee shall fail to comply with
any term, provision or covenant of this Lease, other than the payment of rent,
and the failure is not cured within twenty days after written notice to Lessee
unless the ability to timely cure is not within the control of Lessee; (4)
Lessee shall file a petition or be adjudged bankrupt or insolvent under any
applicable federal or state bankruptcy or insolvency law or admit that it cannot
meet its financial obligations as they become due; or a receiver or trustee
shall be appointed for all or substantially all of the assets of Lessee; or
Lessee shall make transfer in fraud of creditors or shall make an assignment for
the benefit of creditors; or (5) Lessee shall do or permit to be done any act
which results in a lien being filed against the leased premises or the building
and/or project of which the leased premises are a part unless Lessee provides
reasonable protection therefor.
10.02 Remedies for Lessee's Default. Upon the occurrence of any event
of default set forth in this Lease, Lessor shall have the option to pursue any
one or more of the remedies set forth herein without any notice or demand. (1)
Lessor may enter upon and take possession of the leased premises, by picking or
changing locks if necessary, and lock out, expel or remove Lessee and any other
person who may be occupying all or any part of the leased premises without being
liable for any claim for damages, and relet the leased premises on behalf of
Lessee and receive the rent directly by reason of the reletting. Lessee agrees
to pay Lessor on demand any deficiency that may arise by reason of any reletting
of the leased premises; further, Lessee agrees to reimburse Lessor for any
expenditures made by it in order to relet the leased premises, including, but
not limited to, remodeling and repair costs. (2) Lessor may enter upon the
leased premises, by picking or changing the locks if necessary, without being
liable for any claim for damages, and, acting reasonable, do whatever Lessee is
obligated to do under the terms of this Lease. Lessee agrees to reimburse
Lessor on demand for any expenses which Lessor may incur in effecting compliance
with Lessee's obligations under this Lease, (3) Lessee may terminate this Lease
in which event Lessee shall immediately surrender the leased premises to Lessor,
and if Lessee fails to surrender the leased premises, Lessor may, without
prejudice to any other remedy which it may have for possession or arrearages in
rent, enter upon and take possession of the leased premises by picking or
changing locks if necessary and lock out, expel or remove Lessee and any other
person who may be occupying all or any part of the leased premises without being
liable for any claim for damages. Lessee agrees to pay on demand the amount of
all loss and damage which Lessor may suffer by reason of the termination of this
Lease under this section, whether through inability to relet the leased premises
on satisfactory terms or otherwise. A rent concession or waiver of the base
rent shall not relieve Lessee of any obligation to pay any other charge due and
payable under this Lease including without limitation any sum due under Section
2.02. Notwithstanding anything contained in this Lease to the contrary, this
Lease may be terminated by Lessor only by mailing or delivering written notice
of such termination to Lessee, as provided herein and no other act or omission
of Lessor shall be construed as a termination of this Lease.
ARTICLE 11.00 DEFINITIONS
11.01 Abandon. "Abandon" means the vacating of all or a substantial
portion of the leased premises by Lessee, whether or not Lessee is in default of
the rental payments due under this Lease.
11.02 Act of God or Force Majeure. An "act of God" or "force majeure" is
defined for purposes of this Lease as strikes, lockouts, sitdowns, material or
labor restrictions by any governmental authority, unusual transportation delays,
riots, floods, washouts, explosions, earthquakes, fire storms, weather
(including wet grounds or inclement weather which prevents construction), acts
of the public enemy, wars, insurrections and any other cause not reasonably
within the control of Lessor and which by the exercise of due diligence Lessor
is unable, wholly or in part, to prevent or overcome.
11.03 Building or Project. "Building" or "project" as used in this
Lease means the building and/or project described in Section 1.02, including the
leased premises and the land upon which the building or project is situated.
11.04 Commencement Date. "Commencement date" shall be the date set
forth in Section 1.03. The commencement date shall constitute the commencement
of the term of this Lease for all purposes, whether or not Lessee has actually
taken possession.
11.05 Completion Date. "Completion date" shall be the date on which
improvements erected and to be erected upon the leased premises shall have been
completed in accordance with the plans and specifications described in Article
6.00. The completion date shall constitute the commencement of the term of this
Lease for all purposes, whether or not Lessee has actually taken possession.
Lessor shall use its best efforts to establish the completion date as the date
set forth in Section 1.03. In the event that the improvements have not in fact
been completed as of that date, Lessee shall notify Lessor in writing of its
objections. Lessor shall have a reasonable time after delivery of the notice in
which to take such corrective action as may be necessary and shall notify Lessee
in writing as soon as it deems such corrective action has been completed and the
improvements are ready for occupancy. Upon completion of construction, Lessee
shall deliver to Lessor a letter accepting the leased premises as suitable for
the purposes for which they are let and the date of such letter shall constitute
the commencement of the term of this Lease. Whether or not Lessee has executed
such letter of acceptance, taking possession of the leased premises by Lessee
shall be deemed to establish conclusively that the improvements have been
completed in accordance with the plans and specifications, are suitable for the
purposes for which the leased premises are let, and that the leased premises are
in good and satisfactory condition as of the date possession was so taken by
Lessee, except for latent defects, if any. The reasonable time to complete
after notice shall not exceed 60 days unless the delays are caused by Lessee.
11.06 Square Feet. "Square feet" or "square foot" as used in this Lease
includes the area contained within the leased premises together with a common
area percentage factor of the leased premises proportionate to the total
rentable building area. Lessee's actual percentage for computation of its share
of operating expenses shall be agreed upon by the parties at the same time as
agreement on the plans and specifications as required in Article 6.02.
ARTICLE 12.00 MISCELLANEOUS
12.01 Waiver. Failure of Lessor to declare an event of default
immediately upon its occurrence, or delay in taking any action in connection
with an event of default, shall not constitute a waiver of the default, but
Lessor shall have the right to declare the default at any time and take such
action as is lawful or authorized under this Lease so long as the event of
default continues. Pursuit of any one or more of the remedies set forth in
Article 10.00 above shall not preclude pursuit of any one or more of the other
remedies provided elsewhere in this Lease or provided by law, nor shall pursuit
of any remedy constitute forfeiture or waiver of any rent or damages accruing to
Lessor by reason of the violation of any of the terms, provisions or covenants
of this Lease. Failure by Lessor to enforce one or more of the remedies provided
upon an event of default shall not be deemed or construed to constitute a waiver
of the default or of any other violation or breach of any of the terms,
provisions and covenants contained in this Lease.
12.02 Act of God. Lessor shall not be required to perform any covenant
or obligation in this Lease, or be liable in damages to Lessee, so long as the
performance or non-performance of
the covenant or obligation is delayed, caused or prevented by an act of God,
force Majeure or by Lessee.
12.03 Attorney's Fees. In the event either party defaults in the
performance of any of the terms, covenants agreements or conditions contained in
this Lease and the non-defaulting party places in the hands of an attorney the
enforcement of all or any part of this Lease, including an action for recovery
of the possession of the leased premises, the defaulting party agrees to pay the
non-defaulting party's costs of collection, including reasonable attorney's fees
for the services of the attorney whether suit is actually filed or not.
12.04 Successors. This Lease shall be binding upon and inure to the
benefit of Lessor and Lessee and their respective heirs, personal
representatives, successors and assigns. It is hereby covenanted and agreed that
should Lessor's interest in the leased premises cease to exist for any reason
during the term of this Lease, then notwithstanding the happening of such event
this Lease nevertheless shall remain unimpaired and in full force and effect,
and Lessee hereunder agrees to attorn to the then owner of the leased premises.
12.05 Rent Tax. If applicable in the jurisdiction where the leased
premises are situated, Lessee shall pay and be liable for all rental, sales and
use taxes or other similar taxes, if any levied or imposed by any city, state,
county or other governmental body having authority, such payments to be in
addition to all other payments required to be paid to Lessor by Lessee under the
terms of this Lease. Any such payment shall be paid concurrently with the
payment of the rent, additional rent, operating expenses or other charge upon
which the tax is based as set forth above.
12.06 Captions. The captions appearing in this Lease are inserted only
as a matter of convenience and in no way define, limit, construe or describe the
scope or intent of any section.
12.07 Notice. All rent and other payments required to be made by Lessee
shall be payable to Lessor at the address set forth in section 1.05. All
payments required to be made by Lessor to Lessee shall be payable to Lessee at
the address set forth in Section 1.05, or at any other address within the United
States as Lessee may specify from time to time by written notice. Any notice or
document required or permitted to be delivered by the terms of this Lease shall
be deemed to be delivered (whether or not actually received) when deposited in
the United States Mail, postage prepaid, certified mail, return receipt
requested, addressed to the parties at their respective addresses set forth in
Section 1.05.
12.08 Submission of Lease. Submission of this Lease to Lessee for
signature does not constitute a reservation of space or an option to lease.
This Lease is not effective until execution by and delivery to both Lessor and
Lessee.
12.09 Corporate Authority. If Lessee executes this Lease as a
corporation, each of the persons executing this Lease on behalf of the Lessee
does hereby personally represent and warrant that Lessee is a duly authorized
and existing corporation, that Lessee is qualified to do business in the state
in which the leased premises are located, that the corporation has full right
and authority to enter into this Lese, and that each person signing on behalf of
the corporation is authorized to do so. In the event any representation or
warranty is false, all persons who execute this Lease shall be liable,
individually, as Lessee.
If Lessor executes this Lease as a limited liability company, each of the
persons executing this Lease on behalf of Lessor does hereby personally
represent and warrant that Lessor is a duly authorized and existing limited
liability company, that Lessor is qualified to do business in the state in which
the leased premises are located, that the limited liability company has full
right and authority to enter into this Lease, and that each person signing on
behalf of the limited liability company is authorized to do so. In the event
any representation or warranty is false, all persons who execute this Lease
shall be liable, individually, as Lessor.
12.10 Severability. If any provision of this Lease or the application
thereof to any person or circumstance shall be invalid or unenforceable to any
extent, the remainder of this Lease and the application for such provisions to
other persons or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by law.
12.11 Lessor's Liability. If Lessor shall be in default under this
Lease and, if as a consequence of such default, Lessee shall recover a money
judgment against Lessor, such judgment shall be satisfied only out of the assets
of Lessor as a Limited Liability Company.
12.12 Indemnity. Lessor agrees to indemnify and hold harmless Lessee
from and against any liability or claim, whether meritorious or not, arising
with respect to any broker whose claim arises by, through or on behalf of
Lessor. Lessee agrees to indemnify and hold harmless Lessor from and against
any liability or claim, whether meritorious or not, arising with respect to any
broker whose claim arises by, through or on behalf of Lessee.
12.13 Governing Law. Any interpretation of this Lease or any other
determination of the rights or liabilities of the parties hereto, shall be
governed by the laws of the State of Colorado.
12.14 Brokers. See attached Addendum C(5) for Broker's Commission
Provisions.
12.15 Time of Essence. Time is of the essence for all provision of this
Lease.
12.16 Rules and Regulations. The attached Rules and Regulations do
hereby become a part of this Lease and Agreement.
ARTICLE 13.00 OTHER PROVISIONS
Addendum. Incorporated into this lease by reference.
Addendum A - Rent Schedule
Addendum B - Lessee's Improvements and Space Plan
Addendum C - Additional Provisions
ARTICLE 14.00 AMENDMENT AND LIMITATION OF WARRANTIES
Entire Agreement. IT IS EXPRESSLY AGREED BY LESSEE, AS A MATERIAL
CONSIDERATION FOR THE EXECUTION OF THIS LEASE, THAT THIS LEASE, WITH THE
SPECIFIC REFERENCES TO WRITTEN EXTRINSIC DOCUMENTS, IS THE ENTIRE AGREEMENT OF
THE PARTIES; THAT THERE ARE, AND WERE, NO VERBAL REPRESENTATIONS, WARRANTIES,
UNDERSTANDINGS, STIPULATIONS, AGREEMENTS OR PROMISES PERTAINING TO THIS LEASE OR
TO THE EXPRESSLY MENTIONED EXTRINSIC DOCUMENTS NOT INCORPORATED IN WRITING IN
THIS LEASE.
Amendment. THIS LEASE MAY NOT BE ALTERED, WAIVED, AMENDED OR EXTENDED
EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY LESSOR AND LESSEE.
Limitation of Warranties. LESSOR AND LESSEE EXPRESSLY AGREE THAT THERE
ARE AND SHALL BE NO IMPLIED WARRANTIES OR MERCHANTABILITY, HABITABILITY, FITNESS
FOR A PARTICULAR PURPOSE OR OF ANY OTHER KIND ARISING OUT OF THIS LEASE, AND
THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THOSE EXPRESSLY SET FORTH IN THIS
LEASE.
ARTICLE 14.00 SIGNATURES
SIGNED at Colorado Springs, Co. this 23/rd/ day of May, 1996
LESSOR: LESSEE:
2221 Bijou Limited Liability Company, American Teleconferencing Services, Ltd.
A Colorado Limited Liability Company
/s/
------------------------------------ -----------------------------------------
BY: /s/
-------------------------------- -----------------------------------------
Its: Managing Partner Its: President
-------------------------------- ------------------------------------
WITNESSES: WITNESSES:
/s/ /s/
------------------------------------ -----------------------------------------
/s/ /s/
------------------------------------ -----------------------------------------
RULES AND REGULATIONS
1. Lessor agrees to furnish Lessee two keys without charge. Additional keys
will be furnished at a nominal charge. Lessee shall not change locks or install
additional locks on doors without prior written consent of Lessor. Lessee shall
not make or cause to be made duplicates of keys procured from Lessor without
prior approval of Lessor. All keys to leased premises shall be surrendered to
Lessor upon termination of this Lease.
2. Lessee will refer all contractors, contractor's representatives and
installation technicians rendering any service on or to the leased premises for
Lessee to Lessor for Lessor's approval before performance of any contractual
service. Lessee's contractors and installation technicians shall comply with
Lessor's rules and regulations pertaining to construction and installation.
This provision shall apply to all work performed on or about the leased premises
or project, including installation of telephone, telegraph equipment or any
other physical portion of the leased premises or project.
3. Lessee shall not at any time occupy any part of the leased premises or
project as sleeping or lodging quarters.
4. Lessee shall not place, install or operate on the leased premises or in any
part of the building any engine, stove or machinery, or conduct mechanical
operations or xxxx thereon or therein, or place or use in or about the leased
premises or project any explosives, gasoline, kerosene, oil, acids, caustics, or
any flammable, explosive or hazardous material without written consent of
Lessor.
5. Lessor will not be responsible for lost or stolen personal property,
equipment, money or jewelry from the leased premises or the project regardless
of whether such loss occurs when the area is locked against entry or not.
6. No dogs, cats, fowl, or other animals shall be brought into or kept in or
about the leased premises or project except for animals assisting handicapped
person. Bicycles shall not be brought into the building.
7. Employees of Lessor shall not receive or carry messages for or to any Lessee
or other person or contract with or render free or paid services to any Lessee
or to any of Lessee's agents, employees or invitees.
8. None of the parking, plaza, recreation or lawn areas, entries, atrium,
passages, doors, elevators, hallways or stairways shall be blocked or obstructed
or any rubbish, litter, trash, or material of any nature placed, emptied or
thrown into these areas or such area used by Lessee's agents, employees or
invitees at any time for purposes inconsistent with their designation by Lessor.
9. The water closets and other water fixtures shall not be used for any purpose
other than those for which they were constructed, and any damage resulting to
them from misuse or by the
defacing or injury of any part of the building shall be borne by the person who
shall occasion it. No person shall waste water by interfering with the faucets
or otherwise.
10. No person shall disturb occupants of the building by the use of any radios,
VCR's computerized entertainment systems, tape recorders, or musical
instruments, or make any unreasonable noises.
11. Nothing shall be thrown over railings and/or into the atrium of the
building or down the stairways or other passages.
12. Lessee and its employees, agents and invitees shall park their vehicles
only in those parking areas designated by Lessor. Oversized recreational
vehicles and trailers shall not be parked on the property. Lessee shall not
leave any vehicle in a state is disrepair (including without limitation, flat
tires, out of date inspection stickers or license plates) on the property. If
Lessee or its employees, agents or invitees park their vehicles in other than
the designated parking areas or leave any vehicle in a state of disrepair,
Lessor, after giving written notice to Lessee of such violation, shall have the
right to remove such vehicles at Lessee's expense.
13. Parking on site shall be in compliance with all parking rules and
regulations including any sticker or other identification system established by
Lessor. Failure to observe the rules and regulations hall terminate user's
right to on site parking and subject the vehicle in violation of the parking
rules and regulations to removal or impoundment without any liability on Lessor.
Vehicles must be parked entirely within the stall lines and all directional
signs, arrows and posted speed limits must be observed. Parking is prohibited
in areas not striped for parking, in aisles, where "No Parking" signs are
posted, in cross hatched areas, and in other areas as may be designated by
Lessor. Parking stickers or other forms of identification, if supplied by
Lessor, shall remain the property of Lessor and not the property of Lessee and
are not transferable. All responsibility for damage to vehicles or persons is
assumed by the owner of the vehicle or its driver.
14. Movement in or out of the building of furniture or bulk office supplies and
equipment, or dispatch or receipt by Lessee of any merchandise or materials
which requires special use or dedication of elevators or stairways, or movement
through the building entrances or atrium, shall be restricted to hours
designated by Lessor. All such movement shall be under supervision of Lessor
and carries out in the manner agreed between Lessee and Lessor by prearrangement
before performance. Such prearrangement will include determination by Lessor of
time, method, and routing of movement an limitations imposed by safety or other
concerns which may prohibit any article, equipment or any other item from being
brought into the building. Lessee assumes and shall indemnify Lessor against
all risks and claims of damage to persons and properties arising in connection
with any said movement.
15. Lessor shall not be liable for any damages from the stoppage of elevators
for necessary or desirable repairs or improvements or delays of any sort or
duration in connection with the elevator service.
16. Lessee shall not lay floor covering within the leased premises without
written approval of the Lessor. The use of cement or other similar adhesive
materials not easily removed with water is expressly prohibited.
17. Lessee agrees to cooperate and assist Lessor in the prevention of
canvassing, soliciting and peddling within the building or project.
18. Lessor reserves the right to exclude from the building or project, between
the hours of 6:00 p.m. and 7:00 a.m. on weekdays and at all hours on Saturday,
Sunday and legal holidays, all persons who are not known to the building or
project security personnel and who do not present a pass to the building signed
by the Lessee. Each Lessee shall be responsible to all persons for whom he
supplies a pass.
19. It is Lessor's desire to maintain in the building or project, the highest
standard of dignity and good taste consistent with comfort and convenience for
Lessee. Any action or condition not meeting this high standard should b ereport
directly to Lessor. Your cooperation will be mutually beneficial and sincerely
appreciated. Lessor reserves the right to make such other and further
reasonable rules and regulations as In its judgement may from tie to time be
necessary, for the safety, care and cleanliness of the leased premises and for
the preservation of good order therein.
Addendum A
Rent Schedule
1.04 Base Rent
a) Lessee agrees to pay the rent as set forth under the following
Base Rent Schedule as Base Rent each month throughout the 120 month term of this
lease. In addition to the Base Rent, Lessee agrees to pay all expenses relating
to the leased premises as required herein and to pay its pro rata share of
operating expenses relating to the building. Lessor's estimate of the operating
expenses it will incur for the building and leased premises is $1.18 per square
foot during the first calendar year of the lease term exclusive of tenant
utilities and tenant janitorial. Lessee agrees to pay as additional rent monthly
along with payments of base rent $4,916.67 as its pro rata of operating expenses
as provided in Paragraph 2.02 of this Lease.
Base Rent Schedule
Year Base NNN Rent Square Feet Monthly NNN Annual NNN
Leased Rent Rent
1 (months 1-6) $6.00 25,000 $12,500.00
1 (months 7-12) $6.00 35,000 $17,500.00 $180,000.00
2 (months 13-18) $6.25 45,000 $23,437.50
2 (months 19-24) $6.25 50,000 $26,041.67 $296,875.00
3 $6.50 50,000 $27,083.33 $325,000.00
4 $6.75 50,000 $28,125.00 $337,500.00
5 $7.00 50,000 $29,166.67 $350,000.00
6 $7.25 50,000 $30,208.33 $362,500.00
7 $7.50 50,000 $31,250.00 $375,000.00
8 $7.75 50,000 $32,291.67 $387,500.00
9 $8.00 50,000 33,333.33 $400,000.00
10 $8.50 50,000 $35,416.67 $425,000.00
b) Triple Net Intent. It is the purpose and intent of Lessor and
Lessee that the rent provided in Article 1.04 and 2.01 shall be absolutely net
to Lessor, and that Lessee shall pay, without notice or demand, and without
abatement, deduction or setoff and save Lessor harmless from and against, all
costs, taxes, insurance (including the cost of the insurance set forth in
section 7.03), expenses of maintenance, repair and replacement, and other
charges and expenses and obligations of every kind and nature whatsoever
relating to the leased premises which may arise or become due during the term of
this Lease. If Lessee is required to make any payment or incur any expense as
provided in this Lease and fails to do so, then Lessor, at its option, may make
the payment or incur the expense on Lessee's behalf, and the cost thereof shall
be charged to Lessee as additional rent and shall be due and payable by Lessee
within twenty days from receipt of Lessor's invoice.
ADDENDUM B
Lease Improvements & Space Plan
Lessor shall provide a tenant improvement allowance of up to $14.00
per rentable square foot or $700,000.00 to building out leased premises in
accordance with plans and specifications as provided in the Lease mutually
acceptable to both parties and Lessor shall pay said sum directly to the
Contractor as payments become due. The level of tenant finish shall be in
accordance with reasonable building standards, and any costs which exceed the
tenant improvement allowance will be paid for by Lessee in cash one-half upon
approval of working drawings and the remaining half upon substantial completion
of the improvements. Lessor and Lessee shall cooperate in the development of
the plans and specifications during and after this lease is fully executed by
both parties. The tenant improvement allowance also includes the expenses for
the architect and general contractor to perform the design and construction of
the tenant improvements. If the leased premises are not ready for occupancy on
or before the Completion Date due to delays attributable to Lessee (such as
delays in approving drawings or furnishings), then the lease term shall begin on
the Completion Date even though the leased premises are not able to be occupied
on that date. If the leased premises are not ready due to delays attributable
to Lessor, then the lease shall not commence until the leased premises are
completed.
Lessor will, at is own expense, provide the HVAC ducting to the perimeter of
tenant's space and provide the outside walls of the space as well as any common
corridors and common restrooms for the building. These expenses shall not be
included in the tenant improvement allowance.
ADDENDUM C
Additional Provisions
1. Right of First Refusal. During the term of this Lease, Lessee shall have a
one time right to lease approximately 25,000 square feet adjacent to Lessee's
space. When Lessor first desires to lease any of the space to a third party,
Lessor shall notify Lessee in writing of its intention to lease the space with
the general business terms defined for Lessee's review. Lessee shall have ten
(10) business days from receipt of such notice to notify Lessor in writing of
Lessee's intent to exercise its Right of First Refusal and accept the terms and
conditions under the third party offer and reject the third party offer. If
Lessee does not exercise its Right of First Refusal, then the Right of First
Refusal shall terminate and the Lessor may lease the space to the third party.
2. Parking. Lessor shall make available to Lessee at all times during the
Lease term not less than 5.5 parking spaces per 1,000 square feet on the office
space then leased by Tenant. Tenant parking shall be in proximity to Tenant's
entrance and premises.
3. Telephone Lines/Service Level. Tenant's proposed use of the premises
requires extraordinary telephone access and lines. Tenant shall be responsible
for all costs associated with the provision of increased service levels to the
building required for tenant's extraordinary use. The utility provider shall
determine what extraordinary service levels are necessary solely because of
tenant's xxx. Tenant's extraordinary use shall not adversely impact the
building's ability to provide future tenants with normal telephone service
without being responsible to pay for additional service levels to the building.
4. Americans with Disabilities Act Representation. Lessor will be responsible
for making the exterior of the leased premises and the interior common areas
compliant with the provisions of the Americans with Disabilities Act as the
interior becomes occupied. Lessee shall be responsible for compliance with said
act for all interior portions of its leased premises.
5. Brokers. Lessor represents that it has been represented by Broker Xxxxxxx
Xxxxxx, Highland Commercial Group, L.L.C., (hereinafter "Highland") and no other
broker. Lessee represents that it has been represented by Xxxxxxx X. Xxxxxxxxx,
Banc Commercial, (hereinafter "Banc Commercial") and by no other broker. Lessor
shall compensate Broker Highland. Broker Highland shall divide its commission
with Xxxxxx Banc Commercial according to the March 22, 1996 correspondence
between the parties. Neither Lessor or Lessee shall be responsible for any
commission except as set forth herein. Each shall indemnify and hold the other
harmless from liability to any Xxxxxx whose claim arises on their behalf.
6. Environmental Liability. Lessee shall not responsible for any environmental
problems on the leased premises except for those which are directly created or
proximately caused by Lessee, its employees, agents, or invitees.
7. Memorandum of Lease. The parties hereto agree to execute a Memorandum of
Lease in recordable form within ten (10) days after the reasonable request of
either party; which Memorandum of Lease shall be in any form reasonably
requested by said party.
8. Exercise Facility. Landlord agrees to provide an exercise facility for
building tenants' use once building occupancy reaches fifty percent (50%).
ADDENDUM D TO STANDARD OFFICE LEASE -
ACCEPTANCE OF PLANS AND SPECIFICATIONS
AND
SQUARE FOOTAGE AGREEMENT
THIS ADDENDUM D is entered this 18/th/ day of July, 1996, by and
between 2221 Bijou Limited Liability Company ("Lessor") and American
Teleconferencing Service, Ltd. ("Lessee").
WITNESSETH, THE FOLLOWING RECITALS,
WHEREAS, on May 23, 1996 the parties entered into that certain
Standard Office Lease concerning a portion of "The Chidlaw Building" located at
0000 Xxxxx Xxxxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx, and
WHEREAS, Article 1.03 thereof specifies that the Lease "shall commence
120 days after Lessee's acceptance of the plans and specifications as set forth
in Article 6.01 ...", and
WHEREAS, Article 6.01 allows either party to "declare this Lease null
and void if the plans and specifications are not mutually approved ... on or
before forty-five (45) days after execution of this Lease", and
WHEREAS, Article 11.06 obligates the parties to agree on Lessee's
actual percentage for computation of its share of operating expenses
concurrently with the agreement on the plans and specifications, and
WHEREAS, the parties desire to reach the agreements required in the
foregoing recitals and to waive any related contingencies or rights to void the
Lease.
NOW, THEREFORE, in consideration of the foregoing recitals, and the
mutual covenants hereafter, the parties agree as follows:
1. Acceptance of Plans and Specifications. The parties hereby agree
--------------------------------------
that the plans and specifications attached hereto as Exhibit A and executed by
the parties are acceptable in all respects and shall govern the leasehold
improvement obligations of the parties unless hereafter modified in a subsequent
written change order executed by both parties. The right of either party to
declare this Lease null and void pursuant to Article 6.01 is hereafter waived by
each party.
2. Completion/Lease Commencement Date. The "completion date" for
----------------------------------
Lessor's leasehold improvements set forth in Article 6 and the Lease
commencement date shall hereafter be deemed to be 43 days from and after the
date of the execution of this Addendum; such date remaining subject to the
conditions of Article 11.05 of the Lease Agreement.
3. Square Feet. Pursuant to Article 11.06, Lessee's share of the
-----------
operating expenses shall be determined by multiplying the total operating
expenses shall be determined by multiplying the total operating expenses as
defined in the Lease times the following fraction:
the # of sq. feet actually occupied by Lessee from time
to time as "phased-in" as per Rent Schedule -Addendum A
-------------------------------------------------------
________ square feet; the total rentable building area
50,000 square feet = 7% of 296,380
The "total rentable building area" in square feet as above indicated
was computed according to the Building Owners and Managers Association's
Standards ("BOMA"). Should Lessor hereafter determine that the actual "total
rentable building area" has decreased because of final build-out of tenant's
spaces, Lessor shall notify Lessee of the building's new "total rentable
building area" in square feet and as a result thereof, the new percentage for
Lessor's share of the operating expenses; which new percentage shall be
effective immediately upon the posting of said notice.
4. Ratification. It is not the intent of the parties hereto to
------------
modify the terms of the original Standard Office Lease but to supplement and
reach the agreements required therein. The parties hereby ratify and confirm
all terms, conditions and covenants of the original Standard Office Lease, not
supplemented hereby.
IN WITNESS WHEREOF, the parties have signed this Addendum D on the
date above set forth.
LESSOR: LESSEE:
2221 Bijou Limited Liability Co. American Teleconferencing Services, Ltd.
By: /s/ Xxxx X. Xxxxxxxx By: /s/
------------------------- ------------------------
Xxxx X. Xxxxxxxx
Its: Managing Partner Its: President
------------------------ -----------------------
ADDENDUM E TO LEASE AGREEMENT
THIS ADDENDUM is entered this 4/th/ day of October, 1996, by and
between 2221 Bijou Limited Liability Company ("Lessor") and American
Teleconferencing Service, Ltd. ("Lessee").
WITNESSETH, THE FOLLOWING RECITALS:
WHEREAS, on May 23, 1996 the parties entered into that certain
Standard Office Lease concerning a portion of "The Chidlaw Building" located at
0000 Xxxxx Xxxxxx, Xxxxxxxx Springs, Colorado, and
WHEREAS, on July 18, 1996, the parties agreed on the plans and
specifications for the build-out of the Tenant's space, which agreement
(identified as Addendum D to Standard Office Lease) was a condition precedent to
the validity of the Lease, and
WHEREAS, said agreement on the plans and specifications resulted in
the parties' agreement to modify additional terms.
NOW, THEREFORE, in consideration of the foregoing recitals, and the
mutual covenants hereafter, the parties agree to the following amended terms:
1. Leased Premises. Article 1.2 of the original Lease estimated the
---------------
amount of square feet to be rented to be 50,000 square feet. Pursuant to the
agreed upon plans and specifications, the actual area to be occupied by Lessee
is agreed to be 50,470 square feet. The square feet upon which the "Base Rent"
shall be paid shall be phased in as per the Amended Rent Schedule attached as
Amended Addendum A.
2. Base Rental Rate. The initial Base Rental Rate as set forth in
----------------
Addendum A to the original Lease Agreement shall increase from $6/sq. ft. to
$6.80/sq. ft. Periodic increases thereafter shall remain at the $0.25 or $0.50
increments as set forth in the Lease. An Amended Rent Schedule is attached as
Amended Addendum A.
3. Lessor's Build-Out Obligations.
------------------------------
(a) Amended Amount of Lessor's Build-Out Obligation. In consideration
of the rental rate increase and the adjusted square feet rented of 50,470 square
feet, Lessor's buildout expenses shall be increased from the original amount
computed pursuant to Addendum B of the original Lease Agreement to the sum of
$956,580.00 computed as follows:
50,470 SF x $14/SF = $ 706,580
plus "additional amount" = $ 250,000*
---------
TOTAL $ 956,580
* The consideration for the "additional amount" in the Lessor's obligation is
the increase in the Base Rental Rate set forth in No. 2 of this Addendum E.
(b) Excess Improvement Expenses/Lessee's Payment Obligations. Lessee
shall pay the excess build out expenses over and above the sum of $956,580
except those expenses specifically allocated to the Lessor in the original Lease
Agreement. Pursuant to Addendum B of the original Lease, Lessee's obligation is
to pay one-half (1/2) of its share upon the completion of the plans and
specifications drawings and one-half (1/2) on substantial completion. By the
execution hereof, Lessor agrees to modify the initial payment obligation to the
sum of $100,000.00 with the balance due upon substantial completion and
computation of final costs.
4. Amended Lease Commencement-Occupancy-Completion Dates.
-----------------------------------------------------
The "completion date" and the "Lease Commencement Date" originally set
forth in Article 6 of the Lease Agreement were amended by the parties in
Addendum D and are hereby further amended so that Lessor's obligation is to
complete the construction of Phase I to allow occupancy thereof on or before
Sept. 1/st/, 1996 and to further cause the completion of construction of Phase
II by September 30, 1996. Phase I includes the Telephony, LAN, computer rooms,
bathrooms, and OPS/RES open room, with mid-east entrance. Phase II shall
include the general offices, executive rooms, reception and the remainder of the
premises. The construction phases were determined in accordance with the
requirements of X. Xxxx Xxxxxx, consulting program manager and ATS
representative for sites relocation, in his June 27, 1996 correspondence to
Lessor's architect, Xxxxx Xxxxxxx.
The definition of "completion date" as set forth in Article 11.05 of
the original Lease shall remain in effect including the reasonable time to
complete after notice provided to Landlord not to exceed sixty (60) days unless
the delays are caused by Lessee.
5. Ratification. The parties hereby ratify and confirm all remaining
------------
terms, conditions and covenants of the original Standard Office Lease, not
supplemented hereby.
IN WITNESS WHEREOF, the parties have signed this Addendum to Lease
Agreement on the date above set forth.
LESSOR: LESSEE:
2221 Bijou Limited Liability Co. American Teleconferencing Services, Ltd.
By: Xxxx X. Xxxxxxxx /s/ By: /s/
Its: Managing Partner Its:
---------------- ----------------------
AMENDED ADDENDUM A
BASE RENT SCHEDULE
1.04 Base Rent
(a) Lessee agrees to pay the rent as set forth under the following
Base Rent Schedule as Base Rent each month through the 120 month term of this
Lease. The Base Rent shall be paid on the square feet actually occupied
according to the schedule and shall not include any pro-rata portion of the non-
rentable building area. In addition to the Base Rent, Lessee agrees to pay all
expenses relating to the leased premises as required herein and to pay its pro
rata share of operating expense relating to the building. Lessor's estimate of
the operating expenses it will incur for the building and leases premises is
$1.18 per square foot during the first calendar year of the lease term exclusive
of tenant utilities and tenant janitorial.
YEAR BASE NNN SQ/FT MONTHLY NNN ANNUAL NNN
---- RENT LEASED RENT RENT
1 (mo. 1-est) $6.80 27,109 $15,361.77
1 (mo. 2-12, est) $6.80 36,974 $20,951.93 $245,833.03
2 (mo. 13-18 est) $7.05 45,000 $26,437.50
2 (mo. 19-24 est) $7.05 50,470 $29,651.12 $336,531.72
3 $7.30 50,470 $30,702.58 $368,430.96
4 $7.55 50,470 $31,754.04 $381,048.48
5 $7.80 50,470 $32,805.50 $393,666.00
6 $8.05 50,470 $33,856.96 $406,283.52
7 $8.30 50,470 $34,908.42 $418,901.04
8 $8.55 50,470 $35,959.88 $431,518.56
9 $8.80 50,470 $37,011.34 $444,136.08
10 $9.30 50,470 $39,113.96 $469,367.52
(b) Triple Net Intent. It is the purpose and intent of Lessor and
Lessee that the rent provided in Article 1.04 and 2.01 shall be absolutely net
to Lessor, and that Lessee shall pay, without notice or demand, and without
abatement, deduction or setoff and save Lessor harmless from and against, all
costs, taxes, insurance (including the cost of the insurance set forth in
Section 7.03), expenses of maintenance, repair and replacement, and other
charges and expenses and obligations of every kind and nature whatsoever
relating to the leased premises which may arise or become due during the term of
this Lease. If Lessee is required to make any payment or incur any expense as
provided in this Lease and fails to do so, then Lessor, at its option, may make
the payment or incur the expense on Lessee's behalf, and the cost thereof shall
be charged to Lessee as additional rent and shall be due and payable by Lessee
within twenty days from receipt of Lessor's notice.
To accomplish a true Triple Net Lease, Lessee's share of operating
expenses shall be computed on the Lessee's share of the "rentable" square feet
rather than the "useable" square feet
of the building. Until the building is 50% occupied or build out, Lessee's share
of operating expenses shall be 17.93%.
WHERE:
1. TOTAL BLDG USABLE SF = 296,380 SF
2. TOTAL BLDG RENTABLE SF = 95% of the TOTAL BLDG
USEABLE SF (296,380 x 95% = 281,561 SF).
3. Lessee's operating expense percentage is:
50,470 SF divided by 281,561 Rentable SF = 17.93%
Notwithstanding the foregoing, during the first eighteen (18) months
of the Lease (unless Lessee's square feet is increased by actual occupancy from
the above Base Rent Schedule), Lessee shall pay its share of operating expenses
on its share of the Rentable SF according to the above formula computed only on
the actual square feet leased. However, when computing Lessee's share of the
building utilities, Lessee's share shall be computed as if Lessee occupied
50,470 SF during the first 18 months even though actual occupancy may be less
than 50,470 SF.
At such time as 100% of the building layout is built out or planned
space according to plans and specifications, the actual building Rental SF shall
be computed and shall replace the estimate of 95% of Useable SF utilized in the
above formula. Lessor shall provide written notice to Lessee of the actual
Rentable SF at such time and Lessee shall thereafter pay its share of operating
expenses on its share of the actual Rentable SF commencing with the next due
montly rental installment. At such time as 50% occupancy or build out of the
building is attained, Lessor shall have the right to adjust the total building
Rentable SF to actual using the 5% non-rentable estimate for the 50% portion of
the building not built out. Provided, however, the total building Rentable SF
shall never be less than 90% of total building Useable SF until the entire
building is build out or planned space according to plans and specifications.
LESSOR: LESSEE:
2221 Bijou Limited Liability Co. American Teleconferencing Services, Ltd.
By: Xxxx X. Xxxxxxxx /s/ By: /s/
Its: Managing Partner Its:
---------------- ----------------------------
SUBORDINATION, NON-DISTURBANCE,
AND ATTORNMENT AGREEMENT
THIS AGREEMENT, dated the 30/th/ day of May, 1996, among Unitco,
------ ---
a California general partnership (hereinafter referred to as "Mortgagee"), 2221
Bijou Limited Liability Company, a Colorado limited liability company
(hereinafter referred to as "Landlord"), and American Teleconferencing Services,
Ltd., a Missouri corporation (hereinafter referred to as "Tenant").
W I T N E S S E T H :
WHEREAS, Tenant has entered into a certain Standard Office Lease dated
as of May 23, 1996 with Landlord (hereinafter referred to as the "Lease")
covering a portion of a certain building known as The Chidlaw Building, located
at 0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx (hereinafter referred to
as the "Premises"); and
WHEREAS, Mortgagee is the beneficiary under that certain Deed of
Trust, Security Agreement and Financing Statement, dated August 31, 1993,
between Landlord, as grantor, the Public Trustee, as trustee, and recorded
September 1, 1993 in Book 6249, page 1467, in the office of the County Clerk of
El Paso County, Colorado, (hereinafter referred to as the "Mortgage")
encumbering the Premises, which Mortgage secures a Note (hereinafter referred to
as the "Note") evidencing an aggregate indebtedness in the original principal
amount of $1,600,000; and
WHEREAS, the parties desire to set forth their agreement as to their
response in the event of a default by the Landlord under the Mortgage or the
Lease.
NOW, THEREFORE, in consideration of the premises and of the sum of One
Dollars ($1.00) by each party in hand paid to the others, the receipt of which
is hereby acknowledged, it is hereby agreed as follows:
Section 1. The Mortgage is and shall at all times be subject and
subordinate to the Lease and to all renewals, modifications, consolidations,
replacements and extensions thereof.
Section 2. Tenant agrees that it shall attorn to and recognize any
purchaser at a foreclosure sale under the Mortgage or any renewals,
modifications, consolidations, replacements, and extensions thereof, any
transferee who acquires the Premises by deed in lieu of foreclosure, and the
successors and assigns of such purchasers, as its Landlord for the unexpired
balance (and any extensions, if exercised) of the term of said Lease upon the
same terms and conditions set forth in said Lease.
Section 3. In the event that it should become necessary to foreclose
the Mortgage or any renewals, modifications, consolidations, replacements, and
extensions thereof, Mortgagee
thereunder shall not terminate said Lease nor join Tenant in summary or
foreclosure proceedings so long as Tenant is not in default under any of the
terms, covenants, or conditions of said Lease.
Section 4. In the event that the Mortgagee shall succeed to the
interest of Landlord under such lease, Mortgagee shall not be:
(a) liable for any act or omission of any prior landlord
(including Landlord); or
(b) liable for the return of any security deposit; or
(c) subject to any offsets or defenses which Tenant might have
against any prior landlord (including Landlord); or
(d) bound by any rent or additional rent which Tenant might
have paid for more than the current month to any prior landlord
(including Landlord); or
(e) bound by any amendment or modification of the Lease made
without its consent.
Section 5. Tenant agrees to give the Mortgagee or its successor or
assigns, by registered mail, a copy of any notice of default served upon the
Landlord, provided that prior to such notice Tenant has been notified in writing
(by way of Notice of assignment of Lease, or otherwise) of the address of such
Mortgagee. Tenant further agrees that if Landlord shall have failed to cure
such default within the time provided for in this Lease, then the Mortgagee
shall have an additional thirty (30) days to cure such default or it such
default cannot be cured within that time, then such additional time as may be
necessary if within such thirty (30) days any Mortgagee has commenced and is
diligently pursuing the remedies necessary to cure such default (including but
not limited to commencement of foreclosure proceedings if necessary to effect
such cure), in which event the Lease shall not be terminated while such remedies
are being so diligently pursued.
Section 6. Each of Mortgagee, Landlord and Tenant hereby warrants and
represents that the persons signing this document on their respective behalfs
have all requisite authority to do so, and to bind their respective entities
herein.
IN WITNESS WHEREOF, the parties hereto have executed these presents
the day and year first above written.
UNITCO, a California general partnership
By Xxxxx X. Xxxxxx, Xx. Family Revocable Trust of
1991
By: /s/
--------------------------------------
Print Name: Xxxxx X. Xxxxxx, Xx., Trustee
--------------------------------
General Partner
By: Xxxxxx Family Trust
By: /s/
----------------------------------------
Print Name: Xxxxxxx X. Xxxxxx, Co-Trustee
--------------------------------
General Partner
STATE OF California )
----------
) ss
COUNTY OF Los Angeles )
----------
On this 30th date of May , 1996, before me, a Notary
---------- -------------
Public in and for said state, personally appeared XXXXX X. XXXXXX, XX.,
------------------------------
Trustee and XXXXXXX X. XXXXXX, Co-Trustee, general partners of UNITCO, a
-----------------------------------------
California general partnership, known to me to be the persons who executed the
within instrument on behalf of said partnership and acknowledged to me that they
executed the same for the purposes therein stated.
X. X. Xxxxxx /s/
------------------
Notary Public
My Commission Expires;
May 4, 1999 [notary seal]
-----------
2221 BIJOU LIMITED LIABILITY COMPANY
By: /s/
--------------------------------
Print Name: Xxxx X. Xxxxxxxx
------------------------
Title: Managing Partner
--------------------------
By:
--------------------------------
Print Name:
------------------------
Title:
--------------------------
By:
--------------------------------
Print Name:
------------------------
Title:
--------------------------
STATE OF Minnesota )
---------
) ss
COUNTY OF Xxxxxx )
---------
On this 3rd day of June , 1996, before me, a Notary Public
-------- ----------
in and for said state, personally appeared Xxxx X. Xxxxxxxx , managing
--------------------- ---------------
general partner, of 2221 Bijou Limited Liability Company, a Colorado limited
---------------
liability company, known to me to be the person who executed the within
instrument on behalf of said limited liability company, and acknowledge to me
that he executed the same for the purposes therein stated.
Xxxxxxx X. Xxxxxx/s/
---------------------------------------
Notary Public
My Commission Expires:
January 31, 2000 [notary seal]
--------------------------
AMERICAN TELECONFERENCING SERVICES,
LTD.
By: /s/
-----------------------------------
Print Name: Xxxxxxx X. Xxxx
---------------------------
Title: CFO
--------------------------------
STATE OF Kansas )
------
) ss
COUNTY OF Xxxxxxx )
--------
On this 7th day of June , 1996, before me, a Notary Public
-------- ----------
in and for said state, personally appeared Xxxxxxx X. Xxxx , of American
-------------------
Teleconferencing Services, Ltd., a Missouri corporation, known to me to be the
person who executed the within instrument on behalf of said corporation and
acknowledge to me that he executed the same for the purposes therein stated.
Xxxxxx X. Xxxxx /s/
------------------------------------
Notary Public
My Commission Expires:
December 8, 1996
---------------------------
[notary seal]
Book 6908 Page 1476
MEMORANDUM OF LEASE
THIS MEMORANDUM OF LEASE is made and entered into as of the 7/th/ day of
June, 1996, by and between 2221 Bijou Limited Liability Company, a Colorado
limited liability company, having an office at c/o Fieldhill Properties, X.X.
Xxx 000, Xxxxxx, Xxxxxxxxx 00000 (hereinafter called "Lessor"), and American
Teleconferencing Services, Ltd., having a current office at 000 X. Xxxxx, Xxxxx
000, Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000 (hereinafter called "Lessee"),
W I T N E S S E T H :
1. This is a memorandum of that certain Standard Office Lease entered
into as of May 23, 1996 between Lessor and Lessee (hereinafter called the
"Lease"), pursuant to which, and subject to the terms of which, Lessee has the
right to occupy a portion of the following described real estate in Colorado
Springs, El Paso County, Colorado, to wit: Lot 1 in Unitco subdivision in the
City of Colorado Springs, El Paso County, Colorado, together with all
improvements located thereon and rights appertaining thereto (hereinafter called
the "Premises"), for a one hundred twenty (120) month term beginning at the time
period provided for in the Lease.
2. The Lease and Lessee's right, title and interest therein and in the
Premises, shall be completely prior to each and every mortgage, and each and
every mortgage, whether heretofore, now, or hereafter in existence, shall in all
respects be subject and subordinate to the Lease and Lessee's right, title and
interest therein and in the Premises.
3. Lessee, if not in default under the Lease, upon prior written consent
of the Lessor, may sublet the Premises or any portion thereof and may assign the
Lease, provided that each assignee undertakes and agrees in writing for the
benefit of Lessor to keep and perform all the terms, conditions and covenants of
the Lease by Lessee to be kept and performed.
IN WITNESS WEHREOF, the parties hererto have caused this Memorandum of
Lease to be executed and their respective seals hereto affixed the day and year
first above written.
2221 BIJOU LIMITED LIABILTY COMPANY
By: /s/
--------------------------------
Print Name: /s/ Xxxx X. Xxxxxxxx
------------------------
Title: Managing Partner
----------------------------
Book 6908 Page 1477
By:
-------------------------------------
Print Name:
-----------------------------
Title:
----------------------------------
By:
-------------------------------------
Print Name:
-----------------------------
Title:
----------------------------------
STATE OF MINNESOTA )
---------
) ss
COUNTY OF XXXXXX )
------
On this 30/th/ day of May, 1996, before me, a Notary Public in and for said
state, personally appeared Xxxx X. Xxxxxxxx, managing partner, of 2221 Bijou
Limited Liability Company, a Colorado limited liability company, known to me to
be the person who executed the within Memorandum of Lease on behalf of said
limited liability company and acknowledged to me that he executed the same for
the purposes therein stated.
/s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Notary Public
My Commission Expires:
January 31, 2000
---------------------------------
Notary Seal
Book 6908 Page 1478
AMERICAN TELECONFERENCING SERVICES, LTD.
By: /s/ Xxxxxxx X. Xxxx
--------------------------------------------
Print Name: /s/ Xxxxxxx X. Xxxx
---------------------------------------
Title: CFO
-------------------------------------------
STATE OF KANSAS )
------
) ss
COUNTY OF XXXXXXX )
-------
On this 7/th/ day of June, 1996, before me, a Notary Public in and for said
state, personally appeared Xxxxxxx X. Xxxx, CFO, of American Teleconferencing
Services, Ltd., a Missouri corporation, known to me to be the person who
executed the within Memorandum of Lease on behalf of said corporation and
acknowledged to me that he executed the same for the purposes therein stated.
/s/ Xxxxxx X. Xxxx
----------------------------------------------
Notary Public
My Commission Expires:
December 8, 1996
-------------------------------
Notary Seal
NON-DISTURBANCE AND ATTORNMENT AGREEMENT
----------------------------------------
THIS AGREEMENT, made and entered into as of the 11/th/ day of October,
1996, by and between AMERICAN TELECONFERENCING SERVICES, LTD. ("Tenant"), 2221
BIJOU LIMITED LIABILITY COMPANY, a Colorado limited liability company
("Grantor"), and XXXXXX & XXXXXXXXX INVESTMENTS CORPORATION, a Minnesota
corporation ("Beneficiary").
PRELIMINARY STATEMENT OF FACTS:
-------------------------------
A. Beneficiary is making a loan to Grantor ("Loan") repayment of which is
to be secured by a Deed of Trust and Security Agreement and Fixture Filing and
Financing Statement executed by the Grantor to the Public Trustee of El Paso
County, Colorado, a trustee, for the benefit of Beneficiary ("Deed of Trust")
granting and conveying in trust the real estate (the "Premises") more fully
described in Exhibit "A" attached hereto.
B. The Tenant is the present lessee under a lease dated May 23, 1996,
made by Grantor, as landlord, demising a portion of the Premises (said lease and
all amendments thereto being referred to as the "Lease").
C. As a condition precedent to Beneficiary's disbursement of Loan
proceeds Beneficiary has required that Tenant attorn to the Beneficiary under
the Deed of Trust.
D. In return the Beneficiary is agreeable to not disturbing the Tenant's
possession of the Premises.
E. The Beneficiary is disbursing the Loan proceeds in reliance upon the
agreements contained in this instrument which but for it would not disburse the
Loan.
NOW, THEREFORE, in consideration of the sum of $1.00 and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged it is hereby agreed as follows:
1. Tenant To Attorn To Beneficiary. If the interests of Grantor shall be
-------------------------------
transferred to and owned by Beneficiary by reason of foreclosure or other
proceedings brought by it in lieu of or pursuant to a foreclosure, or by any
other manner, and Beneficiary succeeds to the interest of the Grantor under the
Lease, Tenant shall be bound to Beneficiary under all of the terms, covenants
and conditions of the Lease for the balance of the term thereof remaining, with
the same force and effect as if Beneficiary were the landlord under the Lease,
and Tenant does hereby attorn to Beneficiary as its landlord, said attornment to
be effective and self-operative immediately upon Beneficiary succeeding to the
interest of the Grantor under the Lease without the execution of any further
instruments on the part of any of the parties hereto; provided, however, that
Tenant shall be under no obligation to pay rent to Beneficiary until Tenant
receives written notice and such other confirming information as Tenant
reasonably requests from
Beneficiary that it has succeeded to the interest of the Grantor under the
Lease. The respective rights and obligations of Tenant and Beneficiary upon such
attornment, to the extent of the then remaining balance of the term of the Lease
shall be and are the same as now set forth therein; subject, however, to any
Amendment thereto agreed upon by the parties and consented to by Beneficiary, it
being the intention of the parties hereto for this purpose to incorporate the
Lease in this Agreement by reference with the same force and effect as if set
forth at length herein.
2. Beneficiary Not Bound By Certain Acts of Grantor. If Beneficiary
------------------------------------------------
shall succeed to the interest of Grantor under the Lease, Beneficiary shall not
be liable for any act or omission of any prior landlord (including Grantor); nor
subject to any offsets or defenses which Tenant might have against any prior
landlord (including Grantor); nor bound by any rent which Tenant might have
prepaid nor for more than the then current installment; nor bound by any
amendment or modification of the Lease made without its consent. In the event
of a default by the Grantor under the Lease or an occurrence that would give
rise to an offset against rent or claim against the Grantor under the Lease,
Tenant will use its best efforts to set off such defaults against rents
currently due Grantor and will give Beneficiary notice of such defaults or
occurrence at the address of Beneficiary as set forth above. In the event the
Tenant has paid a security deposit to Grantor under the Lease, Beneficiary shall
not have any liability to the Tenant unless the same has actually been paid over
to Beneficiary and Beneficiary holds the same.
3. Assignment of Lease. Grantor will by a separate Assignment of Rents
-------------------
or Assignment of Lease ("Assignment") assign its interest in the rents and
payments due under the Lease to Beneficiary as security for repayment of the
Loan. If in the future there is a default by the Grantor in the performance and
observance of the terms of the Deed of Trust, the Beneficiary may, at its option
under the Assignment, require that all rents and other payments due under the
Lease be paid directly to it. Upon notification to that effect by the
Beneficiary, the Grantor hereby authorizes and directs Tenant and the Tenant
agrees to pay the rent and any payments due under the terms of the Lease to
Beneficiary. The Assignment does not diminish any obligations of the Grantor
under the Lease nor impose any such obligations on the Beneficiary.
4. Successors and Assigns. This Agreement and each and every covenant,
----------------------
agreement and other provisions hereof shall be binding upon the parties hereto
and their successors any assigns, including without limitation each and every
from time to time holder of the Lease or any other person having an interest
therein and shall inure to the benefit of the Beneficiary and its successors and
assigns. As used herein, the words "successors and assigns" shall include the
heirs, administrators and representatives of any natural person who is a party
to this Agreement.
5. Choice of Law. This Agreement is made and executed under and in all
-------------
respects is to be governed and construed by the laws of the State of Colorado.
6. Captions and Headings. The captions and headings of the various
---------------------
sections of this Agreement are for convenience only and are not to be construed
as confining or limiting in any way the scope or intent of the provisions
hereof. Whenever the context requires or permits, the
singular shall include the plural, the plural shall include the singular and the
masculine, feminine and neuter shall be freely interchangeable.
7. Notices. Any notices and other communications permitted or required
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by the provisions of this Agreement (except for telephonic notices expressly
permitted) shall be in writing and shall be deemed to have been properly given
or served by depositing the same with the United States Postal Service, or any
official successor thereto, designated as Registered or Certified Mail, Return
Receipt Requested, bearing adequate postage, or delivery by reputable private
carrier such as Federal Express, Airborne, DHL or similar overnight delivery
service, and addressed as hereinafter provided. Each such notice shall be
effective upon being deposited as aforesaid. The time period within which a
response to any such notice must be given, however, shall commence to run from
the date of receipt of the notice by the addressee thereof. Rejection or other
refusal to accept or the inability to deliver because of changed address of
which no notice was given shall be deemed to be receipt of the notice sent. By
giving to the other party hereto at least ten 10 days' notice thereof, either
party hereto shall have the right from time to time and at any time during the
term of this Agreement to change its address and shall have the right to specify
as its address any other address within the United States of America.
Each notice to Beneficiary shall be addressed as follows:
Xxxxxx & Xxxxxxxxx Investments Corporation
000 Xxxxxxxxx Xxxxxx
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Vice President - Mortgage Department
Each notice to Grantor shall be addressed as follows:
2221 Bijou Limited Liability Company
c/o Xxxx Xxxxxxxx, Chief Executive Officer
Fieldhill Properties
XX Xxx 000
000 Xxxx 0/xx/ Xxxxxx
Xxxxxx, Xxxxxxxxx 00000
Each notice to Tenant shall be addressed as follows:
American Teleconferencing Services, Ltd.
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
8. Certification of Tenant. Tenant certifies to Beneficiary as follows:
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a. Tenant has accepted delivery of its leased portion of the Premises
described in the Lease and has entered into occupancy thereof;
b. Tenant has not entered into any agreement providing for the
discounting, advance payment, abatement or offsetting of rents, other
than as may be permitted under the Lease itself, and no rent has been
paid for more than one installment in advance;
c. The Lease, including Addendums A through E and the Memorandum of
Lease, represents the entire agreement between the parties as to the
leasing, is in full force and effect, and has not been modified,
supplemented or amended in any way;
d. Tenant has fully inspected its leased portion of the Premises and
found the same to be as required by the Lease, in good order and
repair, and all conditions under the Lease to be performed by the
landlord to date have been satisfied; including but not limited to
payment to Tenant of any landlord contributions for Tenant
improvements and completion by landlord of the construction of any
leasehold improvements to be constructed by the landlord as of the
date hereof;
e. The primary term of the Lease commenced on September 1, 1996 and
continues to August 31, 2006; and contains no renewal option(s);
f. Minimum annual rent payable (exclusive of tenant's share of operating
expenses and tenant's share of taxes, if any) is as set forth in
Addendum A to the Lease and is paid to October 1, 1996;
g. As of this date, the landlord is not in default under any of the
terms, conditions, provisions or agreements of the Lease and Tenant
has no offsets, claims or defenses against the landlord with respect
to the Lease;
h. Tenant has not assigned or sublet its interest under the Lease;
i. Tenant has paid a security deposit of $12,500 to Grantor which
security deposit is held in an interest bearing, IOLTA Trust Account
by Xxxxxxx X. Xxxxxx, attorney at law, for the benefit of Grantor,
Tenant and Beneficiary according to their respective interests;
j. Tenant has not prepaid any installments of rent more than one month in
advance;
k. The Undersigned does not and has not used its leased portion of the
Premises for the storage, treatment, manufacturing, generation,
disposal or release into the environment of any petroleum product or
substance which is classified as a "hazardous substance, pollutant or
contaminant under the Federal Comprehensive Environmental Response,
Compensation and Liability Act ("CERCLA") or other applicable federal,
state and local laws and regulations.
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement to
be executed as of the date first above written.
AMERICAN TELECONFERENCING SERVICES,
LTD.
By: /s/ Xxxxxxx X. Xxxx
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Its: CFO
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STATE OF KANSAS )
)ss.
COUNTY OF XXXXXXX )
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The foregoing instrument was acknowledge before me this 10/th/ day of
October, 1996, by Xxxxxxx X. Xxxx, the CFO of American Teleconferencing
Services, Ltd., a Missouri corporation, on behalf of the Corporation.
Witness my hand and official seal.
/s/ Xxxxxx X. Xxxxx
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[Notary Seal] Notary Public
-----------------------------------------
Title
My Commission Expires:
12-8-96
---------------------------
Signature Page to American NDA
XXXXXX & XXXXXXXXX
INVESTMENTS CORPORATION
By: /s/ Xxxxxxx Xxxxxx
-------------------------------------
Its: V.P.
-------------------------------------
STATE OF MINNESOTA )
)ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledge before me this 11/th/ day of
October, 1996, by Xxxxxxx Xxxxxx, the V.P. of Xxxxxx & Xxxxxxxxx Investments
Corporation, a Minnesota corporation, on behalf of the corporation.
Witness my hand and official seal.
/s/ Xxxxxx X. Xxxxx
-----------------------------------------
[Notary Seal] Notary Public
Title
-----------------------------------------
My Commission Expires:
------------------------------
Signature Page to American NDA
2221 BIJOU LIMITED LIABILITY
COMPANY, a Colorado limited liability
company
By: FLENINGE PARTNERSHIP, a
Minnesota General Partnership, its
Manager
By: /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx, Partner
STATE OF MINNESOTA )
)ss.
COUNTY OF HENNEPIN )
The foregoing was instrument was acknowledge before me this 11/th/ day of
October, 1996, by Xxxx X. Xxxxxxxx, a Partner of Fleninge Partnership, a
Minnesota General Partnership, the Manger of 2221 Bijou Limited Liability
Company, a Colorado limited liability company, on behalf of the Company.
Witness my hand and official seal.
/s/ Xxxxxx X. Xxxxx
-----------------------------------------
[Notary Seal] Notary Public
-----------------------------------------
Title
My Commission Expires:
------------------------------
THIS DOCUMENT WAS DRAFTED BY:
XXXXXXXXXXX XXXXX & XXXXXXXX (DPN)
Plaza VII, Suite 3400
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Signature Page to American NDA
EXHIBIT "A"
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Legal Description
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Lot I, Unitco Subdivision, County of El Paso, State of Colorado
