INDUSTRIAL LEASE
(Gross)
1. PARTIES: This Lease, dated, for reference purposes only, December 12, 1995 is
made by and between Five K Investments (herein called "Lessor") and Antenna's
America, Inc. (herein called "Lessee").
2. PREMISES: Lessor hereby leases to Lessee and Lessee leases from Lessor for
the term, at the rental, and upon all of the conditions set forth herein, that
certain real property situated in the County of Jefferson State of Colorado,
commonly known as 0000 Xxxx Xxxxxx, Units 1 and 2, Xxxxxxxxxx, Xxxxxxxx 00000
and described as Approximately 5,100 Square Feet Office and Warehouse. Said real
property including the land and all improvements thereon, is herein called "the
Premises".
3. TERM:
3.1 Term: The term of this Lease shall be for Two(2) years and one (1) year
option to renew commencing on February 15, 1996 and ending on February 14, 1998
unless sooner terminated pursuant to any provision hereof.
3.2 Delay in Commencement: Notwithstanding said commencement date, if for
any reason Lessor cannot deliver possession of the Premises to Lessee on said
date, Lessor shall not be subject to any liability therefor, nor shall such
failure affect the validity of this Lease or the obligations of Lessee hereunder
or extend the term hereof, but in such case Lessee shall not be obligated to pay
rent until possession of the Premises is tendered to Lessee; provided, however,
that if Lessor shall not have delivered possession of the Premises within sixty
(60) days from said commencement date, Lessee may, at Lessee's option, by notice
in writing to Lessor within ten (10) days thereafter, cancel this Lease, in
which event the parties shall be discharged from all obligations hereunder. If
Lessee occupies the Premises prior to said commencement date, such occupancy
shall be subject to all provisions hereof, such occupancy shall not advance the
termination date, and Lessee shall pay rent for such period at the initial
monthly rates set forth below.
4. RENT: Lessee shall pay to Lessor as rent for the Premises equal monthly
payments of $2,337.56 , in advance, on the 1st. day of each month of the term
hereof. Lessee shall pay Lessor upon the execution hereof $1,252.20 as rent for
15 days in February (See Rent Provision breakdown in Section 16.31) Rent for any
period during the term hereof which is for less than one month shall be a pro
rata portion of the monthly installment. Rent shall be payable in lawful money
of the United States to Lessor at the address stated herein or to such other
persons or at such other places as Lessor may designate in writing.
5. SECURITY DEPOSIT: Lessee has on deposit with Lessor upon execution hereof
$2,337.56 as security for Lessee's faithful performance of Lessee's obligations
hereunder. If Lessee fails to pay rent or other charges due hereunder, or
otherwise defaults with respect to any provisions of this Lease, Lessor may use,
apply or retain all or any portion of said deposit for the payment of any rent
or other charge in default or for the payment of any other sum to which Lessor
may become obligated by reason of Lessee's default, or to compensate Lessor for
any loss or damage which Lessor may suffer thereby. If Lessor so uses or applies
all or any portion of said deposit, Lessee shall within ten (10) days after
written demand therefor deposit cash with Lessor in an amount sufficient to
restore said deposit to the full amount hereinabove stated and Lessee's failure
to do so shall be a material breach of this Lease. Lessor shall not be required
to keep said deposit separate from its general accounts. If Lessee performs all
of Lessee's obligations hereunder, said deposit, or so much thereof as has not
theretofore been applied by Lessor, shall be returned, without payment of
interest or other increment for its use, to Lessee (or, at Lessor's option, to
the last assignees, if any, of Lessee's interest hereunder) at the expiration of
the term hereof, and after Lessee has vacated the Premises. No trust
relationship is created herein between Lessor and Lessee with respect to said
Security deposit.
6. USE:
6.1 Use: The Premises shall be used and occupied only for Office, Showroom,
Storage Warehouse and assembly and for no other purpose.
6.2 Compliance with Law:
(a) Lessor warrants to Lessee that the Premises, in its existing state, but
without regard to the use for which Lessee will use the Premises, does not
violate any applicable building code, regulation or ordinance at the time this
lease is executed. In the event it is determined that this warranty has been
violated, then it shall be the obligation of the lessor, after written notice
from Lessee, to promptly, at the Lessor's sole cost and expense, rectify any
such violation. In the event Lessee does not give to Lessor written notice of
the violation of this warranty within 1 year from the commencement of the term
of this Lease, it shall be conclusively deemed that such violation did not exist
and the correction of the same shall be the obligation of the Lessee.
(b) Except as provided in paragraph 6.2 (a), Lessee shall, at Lessee's
expense, comply promptly with all applicable statutes, ordinances, rules,
regulations, orders, restrictions of record, and requirements in effect during
the term or any part of the term hereof regulating the use by Lessee of the P.
remises. Lessee shall not use nor permit the use of the Premises in any manner
that will tend to create waste or a nuisance or, if there shall be more than one
tenant in the building containing the Premises, shall tend to disturb such other
tenants.
6.3 Condition of Premises: Except as provided in paragraph 6.2 (a) Lessee
hereby accepts the Premises in their condition existing as of the date of the
execution hereof, subject to all applicable zoning, municipal, county and state
laws, ordinances and regulations governing and regulating the use of the
Premises, and accepts this lease subject thereto and to all matters disclosed
thereby arid by any exhibits attached hereto. Lessee acknowledges that neither
lessor nor Lessor's agent has made any representation or warranty as to the
suitability of the Premises for the conduct of Lessee's business.
7. MAINTENANCE REPAIRS AND ALTERATIONS:
7.1 Lessor's Obligations: Subject to the provisions of Paragraphs 6.2(a)
and 9 and except for damage caused by any negligent or intentional act or
omission of Lessee, Lessee's agents, employees, or invitees in which event
Lessee shall repair the damage, Lessor, at Lessor's expense, shall keep in good
order, condition and repair the foundations, exterior walls and the exterior
roof of the Premises. Lessor shall not, however, be obligated to paint such
exterior, not shall Lessor be required to maintain the interior surface of
exterior walls, windows, doors or plate glass. Lessor shall have no obligation
to make repairs under this Paragraph 7.1 until a reasonable time after receipt
of written notice of the need for such repairs. Lessee expressly waives the
benefits of any statute now or hereafter in effect which would otherwise afford
Lessee the right to make repairs at Lessor's expense or to terminate this Lease
because of Lessor's failure to keep the Premises in good order, condition and
repair.
7.2 Lessee's Obligations:
(a) Subject to the provisions of Paragraph 6.2(a), 7 and 9, Lessee, at
Lessee's expense, shall keep in good order, condition and repair the Premises
and every part thereof (whether or not the damaged portion of the Premises or
the means of repairing the same are reasonably or readily accessible to Lessee)
including, without limiting the generality of the foregoing, all plumbing,
heating, air- conditioning, ventilating, electrical and lighting facilities and
equipment within the Premises, fixtures, interior walls and interior surface of
exterior walls, ceilings, windows, doors, plate glass, and skylights, located
within the Premises, and all landscaping, driveways, parking lots, fences and
signs located in the Premises and all sidewalks and parkways adjacent to the
Premises. Lessee expressly waives the benefits of any statute now or hereinafter
in effect which would otherwise afford Lessee the right to make repairs at
Lessor's expense or to terminate this Lease because of Lessor's failure to keep
the Premises in good order, condition and repair.
[initials]
(b) if Lessee fails to perform Lessee's obligations under this Paragraph
7.2, Lessor may at Lessor's option enter upon the Premises after 10 days' prior
written notice to Lessee, and put the same in good order, condition and repair,
and the cost thereof together with interest thereon at the rate of 10% per annum
shall be due and payable as additional rent to Lessor together with Lessee's
next rental installment.
(c) On the last day of the term hereof, or on any sooner termination,
Lessee shall surrender the Premises to Lessor in the same condition as received,
broom clean, ordinary wear and tear excepted, Lessee shall repair any damage to
the Premises occasioned by the removal of its trade fixtures, furnishings and
equipment pursuant to Paragraph 7.3(d), which repair shall include the patching
and filling of holes and repair of structural damage.
7.3 Alterations and Additions:
(a) Lessee shall not, without Lessor's prior written consent make any
alterations, improvements, additions, or utility installations in, on or about
the Premises, except for nonstructural alterations not exceeding $1,000 in cost.
As used in this Paragraph 7.3 the term "Utility Installation" shall mean bus
ducting, power panels, wiring, fluorescent fixtures, space heaters, conduits,
airconditioning and plumbing. Lessor may require that Lessee remove any or all
of said alterations, improvements, additions or Utility Installations at the
expiration of the term, and restore the Premises to their prior condition.
Lessor may require Lessee to provide Lessor, at Lessee's sole cost and expense,
a lien and completion bond in an amount equal to one and one-half times the
estimated cost of such improvements, to insure Lessor against any liability for
mechanic's and materialmen's liens and to insure completion of the work. Should
Lessee make any alterations, improvements, additions or Utility Installations
without the prior approval of Lessor, Lessor may require that Lessee remove any
or all of such.
(b) Any alterations, improvements, additions or Utility Installations in,
or about the Premises that Lessee shall desire to make and which requires the
consent of the Lessor shall be presented to Lessor in written form, with
proposed detailed plans. If Lessor shall give its consent the consent shall be
deemed conditioned upon Lessee acquiring a permit to do so from appropriate
governmental agencies, the furnishing of a copy thereof to Lessor prior to the
commencement of the work and the compliance by Lessee of all conditions of said
permit in a prompt and expeditious manner.
(c) Lessee shall pay, when due, all claims for labor or materials furnished
or alleged to have been furnished to or for Lessee at or for use in the
Premises, which claims are or may be secured by any mechanic's or materialmen's
lien against the Premises or any interest therein. Lessee shall give Lessor not
less than ten (l0) days' notice prior to the commencement of any work in the
Premises, and Lessor shall have the right to post demand, then Lessee shall, at
its sole expense defend itself and Lessor against the same and shall pay and
satisfy any such adverse judgment that may be rendered thereon before the
enforcement thereof against the Lessor or the Premises, upon the condition that
if Lessor shall require, Lessee shall furnish to Lessor a surety bond
satisfactory to Lessor in an amount equal to such contested lien claim or
demand indemnifying Lessor against liability for the same and holding the
Premises free from the effect of such lien or claim. In addition, Lessor may
require Lessee to pay Lessor's attorneys fees and costs in participating in such
action if Lessor shall decide it is to its best interest to do so.
(d) Unless Lessor requires their removal, as set forth in Paragraph 7.3(a),
all alterations, improvements, additions and Utility installations (whether or
not such Utility Installations constitute trade fixtures of Lessee), which may
be made on the Premises, shall become the property of Lessor and remain upon and
be surrendered with the Premises at the expiration of the term. Notwithstanding
the provisions of this Paragraph 7.3(d), Lessee's machinery and equipment, other
than that which is affixed to the Premises so that it cannot be removed without
material damage to the Premises, shall remain the property of Lessee and may be
removed by Lessee subject to the provisions of Paragraph 7.2(c).
[initials
8. INSURANCE; INDEMNITY:
8.1 Liability Insurance: Lessee shall, at Lessee's expense obtain and keep
in force during the term of this Lease a policy of Combined Single Limit, Bodily
Injury and Property Damage Insurance insuring Lessor and Lessee against and
liability arising out of the ownership, use, occupancy of maintenance of the
Premises and all areas appurtenant thereto. Such insurance shall be a combined
single limit policy in an amount not less than $500,000. The policy shall
contain cross liability endorsements and shall insure performance by Lessee of
the indemnity provisions of this Paragraph 8. The limits of said insurance shall
not, however, limit the liability of Lessee hereunder. In the event that the
Premises constitute a part of a larger property said insurance shall have a
Lessor's Protective Liability endorsement attached thereto. If Lessee shall fail
to procure and maintain said insurance Lessor may, but shall not be required to,
procure and maintain the same, but at the expense of Lessee. Not more
frequently than each 5 years, if, in the reasonable opinion of Lessor, the
amount of liability insurance required hereunder is not adequate, Lessee shall
increase said insurance coverage as required by Lessor. Provided, however, that
in no event shall the amount of the liability insurance increase be more than
fifty percent greater than the amount thereof during the preceding five years of
the term of this Lease. However, the failure of Lessor to require any additional
insurance coverage shall not be deemed to relieve Lessee from any obligations
under this Lease.
8.2 Property Insurance:
(a) Lessor shall obtain and keep in force during the term of this Lease a
policy or policies of insurance covering loss or damage to the Premises, but not
Lessee's fixtures, equipment or tenant improvements in the amount of the full
replacement value thereof, providing protection against all perils including
within the classification of fire, extended coverage, vandalism, malicious
mischief, special extended perils (all risk) but not plate glass insurance. In
addition, the Lessor shall obtain and keep in force, during the term of this
Lease, a policy of rental income insurance covering a period of six months,
with loss payable to Lessor which insurance shall also cover all real estate
taxes and insurance costs for said period. In the event that the Premises
contains sprinklers then the insurance coverage shall include sprinkler leakage.
insurance.
(b) [text deleted and initialed]
(c) [text deleted and initialed]
(d) [text deleted and initialed]
[initials]
8.3 Insurance Policies: Insurance required hereunder shall be in companies
holding a "General Policyholders Rating" of B plus or better as set forth in the
most current issue of "Best Insurance Guide". Lessee shall deliver to Lessor
copies of policies of liability insurance required under Paragraph 8.1 or
certificates evidencing the existence and amounts of such insurance with loss
payable clauses satisfactory to Lessor. No such policy shall be cancellable or
subject to reduction of coverage or other modification except after ten (10)
days prior written notice of Lessor. Lessee shall, within ten (10) days prior to
the expiration of such policies, furnish Lessor with renewals or "binders"
thereof, or Lessor may order such insurance and charge the cost thereof to
Lessee, which amount shall be payable by Lessee upon demand. Lessee shall not do
or permit to be done anything which shall invalidate the insurance policies
referred to in Paragraph 8.2.
8.4 Waiver of Subrogation: Lessee and Lessor each hereby waives any and all
rights of recovery against the other, or against the officers, employees, agents
and representatives of the other, for loss of or damage to such waiving party or
its property or the property of others under its control, where such loss or
damage is insured against under any insurance policy in force at the time of
such loss or damage. Lessee and Lessor shall, upon obtaining the policies of
insurance required hereunder, give notice to the insurance carrier or carriers
that the forgoing mutual waiver of subrogation is contained in this Lease.
8.5 Indemnity: Lessee shall indemnify and hold harmless Lessor from and
against any and all claims arising from Lessee's use of the Premises, or from
the conduct of Lessee's business or from any activity, work or things done,
permitted or suffered by Lessee in or about the Premises or elsewhere and shall
further indemnify and hold harmless Lessor from and against any and all claims
arising from any breach or default in the performance of any obligation on
Lessee's part to be performed under the terms of this Lease or arising from any
negligence of the Lessee, or any of Lessee's agents, contractors, or employees,
and from and against all costs, attorney's fees, expenses and liabilities
incurred in the defense of any such claim or any action or proceeding brought
thereon; and in case any action or proceeding be brought against Lessor by
reason of any such claim, Lessee upon notice from Lessor shall defend the same
at Lessee's expense by counsel satisfactory to Lessor. Lessee, as a material
part of the consideration to Lessor, hereby assumes all risk of damage to
property or injury to persons in, upon or about the Premises arising from any
cause and Lessee hereby waives all claims in respect thereof against Lessor.
8.6 Exemption of Lessor from Liability: Lessee hereby agrees that Lessor
shall not be liable for injury to Lessee's business or any loss of income
therefrom or for damage to the goods, wares, merchandise or other property of
Lessee, Lessee's employees, invitees, customers, or any other person in or about
the Premises, nor shall Lessor be liable for injury to the person of Lessee,
Lessee's employees, agents or contractors, whether such damage or injury is
caused by or results from fire, steam, electricity, gas, water, or rain, or from
the breakage, laakage, obstruction or other defects of pipes, sprinklers, wires,
appliances, plumbing, air conditioning or lighting fixtures, or from any other
cause, whether the said damage or injury results from conditions arising upon
the Premises or upon other portions of the building of which the Premises are a
part or from other sources or places and regardless of whether the cause of such
damage or injury or the means of repairing the same is inaccessible to Lessee.
Lessor shall not be liable for any damages arising from any act or neglect of
any other tenant, if any, of the building in which the Premises are located.
9. DAMAGE OR DESTRUCTION:
9.1 Partial Damage-Insured: Subject to the provisions of Paragraphs 9.3 and
9.4, if the Premises are damaged and such damage was caused by a casualty
covered under an insurance policy required to be maintained pursuant to
Paragraph 8.2, Lessor shall at Lessor's expense repair such damage as soon as
reasonably possible and this Lease shall continue in full force and effect but
Lessor shall not repair or replace Lessee's fixtures, equipment or tenant
improvements.
[initials]
9.2 Partial Damage-Uninsured: Subject to the provisions of Paragraphs 9.3
and 9.4, if at any time during the term hereof the Premises are damaged, except
by a negligent or willful act of Lessee (in which event Lessee shall make the
repairs, at its expense) and such damage was caused by a casualty not covered
under an insurance policy required to be maintained by Lessor pursuant to
Paragraph 8.2, Lessor may at Lessor's option either (i) repair such damage as
soon as reasonably possible at Lessor's expense, in which event this Lease shall
continue in full force and effect, or (ii) give written notice to Lessee within
thirty (30) days after the date of the occurrence of such damage to Lessor's
intention to cancel and terminate this Lease as of the date of the occurrence of
such damaged. In the event Lessor elects to give such notice of Lessor's
intention to cancel and terminate this Lease, Lessee shall have the right within
ten (10) days after the receipt of such notice to give written notice to Lessor
of Lessee's intention to repair such damage at Lessee's expense, without
reimbursement form Lessor, in which event this Lease shall continue in full
force and effect, and Lessee shall proceed to make such repairs as soon as
reasonably possible. If Lessee does not give such notice within such 10-day
period this Lease shall be cancelled and terminated as of the date of the
occurrence of such damage.
9.3 Total Destruction: If at any time during the term hereof the Premises
are totally destroyed from any cause whether or not covered by the insurance
required to be maintained by Lessor or not covered by the insurance required to
be maintained by Lessor pursuant to Paragraph 8.2 (including any total
destruction required by any authorized public authority) this Lease shall
automatically terminate as of the date of such total destruction.
9.4 Damage Near End of Term: If the Premises are partially destroyed or
damaged during the last six months of the term of this Lease, Lessor may at
Lessor's option cancel and terminate this Lease as of the date of occurrence of
such damage by giving written notice to Lessee of Lessor's election to do so
within 30 days after the date of occurrence of such damage.
9.5 Abatement of Rent: Lessee's Remedies:
(a) If the Premises are partially destroyed or damaged and Lessor or Lessee
repairs or restores them pursuant to the provisions of this Paragraph 9, the
rent payable hereunder for the period during which such damage, repair or
restoration continues shall be abated in proportion to the degree to which
Lessee's use of the Premises is impaired. Except for abatement of rent, if any,
Lessee shall have no claim against Lessor for any damage suffered by reason of
any such damage, destruction, repair or restoration.
(b) If Lessor shall be obligated to repair or restore the Premises under
the provisions of this Paragraph 9 and shall not commence such repair or
restoration within 90 days after such obligations shall accrue, Lessee may at
Lessee's option cancel and terminate this Lease by giving Lessor written notice
of Lessee's election to do so at any time prior to the commencement to such
repair or restoration. In such event this Lease shall terminate as of the date
of such notice.
9.6 Termination - Advance Payments: Upon termination of this Lease pursuant
to this Paragraph 9, an equitable adjustment shall be made concerning advance
rent and any advance payments made by Lessee to Lessor. Lessor shall, in
addition, return to Lessee so much of Lessee's security deposit as has not
theretofore been applied by Lessor.
9.7 Waiver: Lessee waives the provisions of any Colorado Civil Code
Sections which relate to termination of lessee when the thing leased is
destroyed and agrees that such event shall be governed by the terms of this
Lease.
10. REAL PROPERTY TAXES:
[text deleted and initialed]
[initials]
10.2 Definition of "Real Property" Tax: As used herein, the term "real
property tax" shall include any form of assessment, license fee, commercial
rental tax, levy, penalty, or tax (other than inheritance or estate taxes),
imposed by any authority having the direct or indirect power to tax, including
any city, county, state or federal government,. or any school, agricultural,
lighting, drainage or other improvement district thereof, as against any legal
or equitable interest of Lessor in the Premises or in the real property of which
the Premises are a part, as against Lessor's right to rent or other income
therefrom, or as against Lessor's business of leasing the Premises or any tax
imposed in substitution, partially or totally, or any tax previously included
within the definition of real property tax, or any additional tax, the nature of
which was previously included within the definition of real property tax.
10.3 Joint Assessment: If the premises are not separately assessed,
Lessee's liability shall be an equitable proportion of the real property taxes
for all of the land and improvements included within the tax parcel assessed,
such proportion to be determined by Lessor from the respective valuations
assigned in the assessor's work sheets or other information as may be reasonably
available. Lessor's reasonable determination hereof, in good faith, shall be
conclusive.
10.4 Personal Property Taxes:
(a) Lessee shall pay prior to delinquency all taxes assessed against and
levied upon trade fixtures, furnishings, equipment and all other personal
property of Lessee contained in the Premises or elsewhere. When possible, Lessee
shall cause said trade fixtures, furnishings, equipment and all other personal
property to be assessed and billed separately from the real property of Lessor.
(b) If any of Lessee's said personal property shall be assessed with
Lessor's real property, Lessee shall pay Lessor the taxes attributable to Lessee
within 10 days after receipt of a written statement setting forth the taxes
applicable to Lessee's property.
11. UTILITIES:
Lessee shall pay for all gas, heat, light, power, telephone and other
utilities and services supplied to the Premises, together with any taxes
thereon. If any such services are not separately metered to Lessee, Lessee shall
pay a reasonable proportion to be determined by Lessor of all charges jointly
metered with other premises. Lessor warrants that all such utilities are
presently serving the premises.
12. ASSIGNMENT AND SUBLETTING:
12.1 Lessor's Consent Required: Lessee shall not voluntarily or by
operation of law assign, transfer, mortgage, sublet, or otherwise transfer or
encumber all. or any part of Lessee's interest in this Lease or in the Premises,
without Lessor's written consent, which Lessor shall not unreasonably withhold.
Any attempted assignment, transfer, mortgage, encumbrance or subletting without
such consent shall be void, and shall constitute a breach of this Lease.
12.2 Lessee Affiliate: Notwithstanding the provisions of Paragraph 12.1
hereof, Lessee may assign or sublet the Premises, or any portion thereof,
without Lessor's consent, to any corporation which controls, is controlled by or
is under common control with Lessee, or to any corporation resulting from the
merger or consolidation with Lessee, or to any person or entity which acquires
all the assets of Lessee as a going concern of the business that is being
conducted on the Premises, provided that said assignee assumes, in full, the
obligations of Lessee under this Lease. Any such assignment shall not, in any
way, affect or limit the liability of Lessee under the terms of this Lease even
if after such assignment or subletting the terms of this Lease are materially
changed or altered without the consent of Lessee, the consent of whom shall not
be necessary.
[initials]
12.3 No Release of Lessee: Regardless of Lessor's consent, no subletting or
assignment shall release Lessee of Lessor's obligation or alter the primary
liability of Lessee to pay the rent and to perform all other obligations to be
performed by Lessee hereunder. The acceptance of rent by lessor from any other
person shall not be deemed to be a waiver by Lessor of any provision hereof.
Consent to one assignment or subletting shall not be deemed consent to any
subsequent assignment or subletting. In the event of default by any assignees of
Lessee or any successor of Lessee, in the performance of any of the terms
hereof, Lessor may proceed directly against Lessee without the necessity of
exhausting remedies against said assignee. Lessor may consent to subsequent
assignments or subletting of this Lease or amendments or modifications to this
Lease with assignees of Lessee, without notifying Lessee, or any successor of
Lessee, and without obtaining its or their consent thereto and such action shall
not relieve Lessee of liability under this Lease.
12.4 Attorney's Fees: In the event Lessee shall assign or sublet the
Premises or request the consent of Lessor to any assignment or subletting, or if
Lessee shall request the consent of Lessor for any act Lessee proposes to do,
then Lessee shall pay Lessor's reasonable attorney's fees incurred in connection
therewith, such attorney's fees not to exceed $250.00 for each such request.
13. DEFAULTS; REMEDIES:
13.1 Defaults: The occurrence of any one or more of the following events
shall constitute a material default and breach of this Lease by lessee:
(a) The vacating or abandonment of the Premises by Lessee.
(b) The failure by Lessee to make any payment of rent or any other payment
required to be made by Lessee hereunder, as and when due, where such failure
shall continue for a period of three days after written notice thereof from
Lessor to Lessee.
(c) The failure by Lessee to observe or perform any of the covenants,
conditions or provisions of this Lease to be observed or performed by Lessee,
other than described in paragraph (b) above, where such failure shall continue
for a period of 30 days after written notice hereof from Lessor to Lessee;
provided, however, that if the nature of Lessee's default is such that more than
30 days are reasonably required for its cure, then Lessee shall not be deemed to
be in default if Lessee commenced such cure within said 30-day period and
thereafter diligently prosecutes such cure to completion.
(d) (i) The making by Lessee of any general arrangement for the benefit of
creditors; (ii) the filing by or against Lessee of a petition to have Lessee
adjudged a bankrupt or a petition for reorganization or arrangement under any
law relating to bankruptcy (unless, in the case of a petition filed against
Lessee, the same is dismissed within 60 days); (iii) the appointment of a
trustee or receiver to take possession of substantially all of Lessee's assets
located at the Premises or of Lessee's interest in this Lease, where possession
is not restored to lessee within 30 days; or (iv) the attachment, execution or
other judicial. seizure of substantially all of Lessee's assets located at the
Premises or of Lessee's interest in this Lease, where such seizure is not
discharged within 30 days.
(e) The discovery by lessor than any financial statement given to Lessor by
lessee, any assignee of Lessee, any sublessee of lessee, any successor in
interest of Lessee or any guarantor of Lessee's obligation hereunder, and any of
them, was materially false.
13.2 Remedies: In the event of any such material default or breach by
Lessee, lessor may at any time thereafter, with or without notice of demand and
without limiting Lessor in the exercise of any right or remedy which Lessor may
have by reason of such default or breach:
(a) Terminate Lessee's right to possession of the Premises by any lawful
means, in which case this Lease shall terminate and Lessee shall immediately
surrender possession of the Premises to Lessor. In such event Lessor shall be
entitled to recover from Lessee all damage incurred by Lessor by reason of
Lessee's default including, but not limited to, the cost of recovering
possession of the Premises; expenses of releasing, including necessary
renovation and alteration of the Premises, reasonable attorney's fees, and any
[initials]
real estate commission actually paid; the work at the time of award by the court
having jurisdiction thereof of the amount by which the unpaid rent for the
balance of the term after the time of such award exceeds the amount of such
rental loss for the same period that Lessee provides could be reasonably
avoided; that portion of the leasing commission paid by lessor pursuant to
Paragraph 15 applicable to the unexpired term of this Lease.
(b) Maintain Lessee's right to possession in which case this Lease shall
continue in effect whether or not Lessee shall have abandoned the Premises. In
such event Lessor shall be entitled to enforce all of Lessor's rights and
remedies under this Lease, including the right to recover the rent as it become
due hereunder.
(c) Pursue any other remedy now or hereafter available to Lessor under the
laws or judicial decisions of the State of Colorado.
13.3 Default by Lessor: Lessor shall not be in default unless Lessor fails
to perform obligations required of Lessor within a reasonable time, but in no
event later than thirty (30) days after written notice by Lessee to Lessor and
to the holder of any first mortgage or deed of trust covering the Premises whose
name and address shall have theretofore been furnished to Lessee in writing,
specifying wherein Lessor has failed to perform such obligation; provided,
however, that if the nature of Lessor's obligation is such that more than thirty
(30) days are required for performance then Lessor shall not be in default if
Lessor commences performance within such 30-day period and thereafter diligently
prosecutes the same to completion.
13.4 Late Charges: Lessee hereby acknowledges that late payment by Lessee
to Lessor of rent and other sums due hereunder will cause Lessor to incur costs
not contemplated by this lease, the exact amount of which will be extremely
difficult to ascertain. Such costs include, but are not limited to, processing
and accounting charges, and late charges which may be imposed on the Lessor by
the terms of any mortgage or trust deed covering the Premises. Accordingly, if
any installment of rent or any other sum due from Lessee shall not be received
by Lessor or Lessor's designee within ten (10) days after such amount shall be
due, Lessee shall pay to Lessor a late charge equal to 6% of such overdue
amount. The parties agree that such late charge represents a fair and reasonable
estimate of the costs Lessor will incur by reason of late payment by Lessee.
Acceptance of such late charge by Lessor shall in no event constitute a waiver
of Lessee's default with respect to such overdue amount, nor prevent Lessor from
exercising any of the other rights and remedies granted hereunder.
14. CONDEMNATION:
If the Premises or any portion thereof are taken under the power of eminent
domain, or sold under the threat of the exercise of said power (all of which are
herein called "Condemnation"), this Lease shall terminate as to the part so
taken as of the date the condemning authority takes titles or possession,
whichever first occurs. If more than 10% of the floor area of the improvements
on the premises, or more than 25 % of the land area of the Premises which is not
occupied by any improvements, is taken by condemnation, Lessee may, at Lessee's
option, to be exercised in writing only within ten (10) days after Lessor shall
have given Lessee written notice of such taking (or in the absence of such
notice, within ten (10) days after the condemning authority shall have taken
possession) terminate this Lease as of the date the condemning authority takes
such possession. If Lessee does not terminate this Lease in accordance with the
foregoing, this Lease shall remain in full force and effect as to the portion of
the Premises remaining, except that the rent shall be reduced in the proportion
that the floor area taken bears to the total floor area of the building situated
on the Premises. Any award for the taking of all or any part of the Premises
under the power of eminent domain or any payment made under threat of the
exercise of such power shall be the property of Lessor, whether such award shall
be made as compensation for diminution in value of the leasehold or for the
taking of the fee, or as severance damages; provided, however, that Lessee shall
be entitled to any award for loss of or damage to Lessee's trade fixtures and
removable personal property. In the event that this Lease is not terminated by
reason of such condemnation, Lessor shall, to the extent of severance damages
[initials]
received by Lessor in connection with such condemnation, repair any damage to
the Premises caused by such condemnation except to the extent that Lessee has
been reimbursed therefor by the condemning authority. lessee shall pay amount in
excess of such severance damages required to complete such repair.
15. BROKER'S FEE:
[Section deleted and initialed]
16. GENERAL PROVISIONS:
16.1 Estoppel Certificates:
(a) Lessee shall at any time upon not less than ten (10) days prior written
notice from Lessor execute, acknowledge and deliver to Lessor a statement in
writing (i) certifying that this lease is unmodified and in full force and
effect (or, if modified, stating the nature of such modification and
certifying that this Lease, as so modified, is in full force and effect) and the
date to which the rent and other charges are paid in advance, if any, and (ii)
acknowledging that there are not, to Lessee's knowledge, any uncured defaults on
the part of Lessor hereunder, or specifying such defaults if any are claimed.
Any such statement may be conclusively relied upon by any prospective purchaser
or encumbrancer of the Premises.
(b) Lessee's failure to deliver such statement within such time shall be
conclusive upon Lessee (i) that this Lease is in full force and effect, without
modification except as may be represented by Lessor, (ii) that there are no
uncured defaults in Lessor's performance, and (iii) that not more than one
month's rent has been paid in advance or such failure may be considered by
Lessor as a default by Lessee under this Lease.
(c) If Lessor desires to finance or refinance the Premises, or any part
thereof, Lessee hereby agrees to deliver to any lender designated by Lessor such
financial contracts of Lessee as may be reasonably required by such lender. Such
contracts shall include the past three years' financial history of Lessee. All
such financial history shall be received by Lessor in confidence and shall be
used only for the purposes herein set forth.
16.2 Lessor's Liability: The term "Lessor" as used herein shall mean only
the owner or owners at the time in question of the fee title or a Lessee's
interest in a ground lease of the Premises, and except as expressly provided in
Paragraph. 15, in the event of any transfer of such title or interest, Lessor
herein named (and in case of any subsequent transfers the then grantor) shall be
relieved from and after the date of such transfer of all liability as respects
Lessor's obligations thereafter to be performed, provided that any funds in the
hands of Lessor or the then grantor at the time of such transfer, in which
Lessee has an interest, shall be delivered to the grantee. The obligations
contained in this Lease to be performed by Lessor shall, subject as aforesaid,
be binding on Lessor's successors and assigns, only during their respective
periods of ownership.
16.3 Severability: The invalidity of any provision of this Lease as
determined by a court of competent jurisdiction, shall in no way affect the
validity of any other provisions hereof.
[initials]
16.4 Interest on Past-due Obligations: Except as expressly herein provided,
any amount due to Lessor not paid when due shall bear interest at 12% per annum
from the date due. Payment of such interest shall not excuse or cure any default
by Lessee under this Lease, provided, however, that interest shall not be
payable on late charges incurred by Lessee nor on any amount upon which late
charges are paid by Lessee.
16.5 Time of Essence: Time is of the essence.
16.6 Captions: Article and paragraph captions are not a part hereof.
16.7 Incorporation of Prior Agreements: Amendments: This Lease contains all
agreements of the Parties with respect to any matter mentioned herein. No prior
agreement or understanding pertaining to any such matter shall be effective.
This Lease may be modified in writing only, signed by the parties in interest at
the time of the modification. Except as otherwise state in this Lease, Lessee
hereby acknowledges that neither the real estate broker listed in Paragraph 15
hereof nor any cooperating broker on this transaction nor the Lessor or any
employees or agents of any of said persons has made any oral or written
warranties or representations to Lessee relative to the condition or use by
Lessee of said Premises and Lessee acknowledges that Lessee assumes all
responsibility regarding the Occupational Safety Health Act, the legal use and
adaptability of the Premises and the compliance thereof with all applicable laws
and regulations in effect during the term of this Lease except as otherwise
specifically stated in this lease.
16.8 Notices: Any notice required or permitted to be given hereunder shall
be in writing and may be given by personal delivery or by certified mail, and if
given personally or by mail, shall be deemed sufficiently given if addressed to
Lessee or to Lessor at the address noted below the signature of the respective
parties, as the case may be. Either party may by notice to the other specify a
different a address for notice purposes for Lessee that address is corporate
address listed below. A copy of all notices required or permitted to be given to
Lessor hereunder shall be concurrently transmitted to such party or parties at
such addresses as Lessor may from time to time hereafter designate by notice to
Lessee.
16.9 Waivers: No waiver by Lessor of any provision hereof shall be deemed a
waiver of any other provision hereof or of any subsequent breach by lessee of
the same or any other provision. Lessor's consent to or approval of any act
shall not be deemed to render unnecessary the obtaining of Lessor's consent to
or approval of any subsequent act by Lessee. The acceptance of rent hereunder by
Lessor shall not be a waiver of any preceding breach by Lessee of any provision
hereof, other than the failure of Lessee to pay the particular rent so accepted,
regardless of lessor's knowledge of such preceding breach at the time of
acceptance of such rent.
16.10 Recording: Lessee shall not record this Lease without Lessor's prior
written consent, and such recordation shall, at the option of Lessor, constitute
a non-curable default of Lessee hereunder. Either party shall, upon written
request of the other, execute, acknowledge and deliver to the other a short form
"memorandum" of this Lease for recording purposes.
16.11 Holding Over: If Lessee remains in possession of the Premises or any
part thereof after the expiration of the term hereof without the express written
consent of Lessor, such occupancy shall be a tenancy from month to month at a
rental in the amount of the last monthly rental plus all other charges payable
hereunder, and upon all the terms hereof applicable to a month-to- month
tenancy.
16.12 Cumulative Remedies: No remedy or election hereunder shall be deemed
exclusive, but shall, wherever possible, be cumulative with all other remedies
at law or in equity.
[initials]
16.13 Covenants and Conditions: Each provision of this Lease performable by
Lessee shall be deemed both a covenant and a condition.
16.14 Binding Effect: Choice of Law: Subject to any provisions hereof
restricting assignment or subletting by Lessee and subject to the provisions of
Paragraph 16.2, this Lease shall bind the parties, their personal
representatives, successors and assigns. This Lease shall be governed by the
laws of the State of Colorado.
16.15 Subordinates:
(a) This Lease, at Lessor's option, shall be subordinate to any ground
lease, mortgage, deed of trust, or any other hypothecation for security now or
hereafter placed upon the real property of which the Premises are a part and to
any and all advances made on the security thereof and to all renewals,
modifications, consolidations, replacements and extension thereof.
Notwithstanding such subordination, Lessee's right to quiet possession of the
Premises shall not be disturbed if Lessee is not in default and so long as
Lessee shall pay the rent and observe and perform all of the provisions of this
Lease, unless this Lease is otherwise terminated pursuant to its terms, if any
mortgagee, trustee or ground lessor shall elect to have this Lease prior to the
lien of its mortgage, deed of trust or ground lease, whether this Lease is dated
prior or subsequent to the dateof said mortgage, deed of trust or ground lease
or the date of recording thereof.
(b) Lessee agrees to execute any documents required to effectuate such
subordination or to make this Lease prior to the lien of any mortgage, deed of
trust or ground lease, as the case may be, and failing to do so within ten (10)
days after written demand does hereby make, constitute and irrevocably appoint
Lessor as Lessee's attorney in fact and in Lessee's name, place and stead, to do
so.
16.16 Attorney's Fees: If either party or the broker named herein brings an
action to enforce the terms hereof or declare rights hereunder, the prevailing
party in any such action, on trial or appeal, shall be entitled to his
reasonable attorney's fees to be paid by the losing party as fixed by the court.
The provisions of this paragraph shall inure to the benefit of the broker named
herein who seeks to enforce a right hereunder.
16.17 Lessor's Access: Lessor and Lessor's agents shall have the right to
enter the Premises at reasonable times for the purpose of inspecting the same,
showing the same to prospective purchasers, lenders or lessees, and making such
alterations, repair, improvements or additions to the Premises or to the
building of which they are a part as Lessor may deem necessary or desirable.
Lessor may at any time place on or about the Premises any ordinary "For Sale"
signs and Lessor may at any time during the last 120 days of the term hereof
place on or about the Premises any ordinary "For Lease" signs all without rebate
or rent or liability to Lessee.
16.18 Signs and Auctions: Lessee shall not place any sign upon the Premises
or conduct any auction thereon without Lessor's prior written consent, except
that Lessee shall have the right, without the prior permission of Lessor to
place ordinary and usual for rent or sublet signs thereon.
16.19 Merger: The voluntary or other surrender of this Lease by Lessee, or
a mutual cancellation thereof, or a termination by Lessor, shall not work a
merger, and shall, at the option of Lessor, terminate all or any existing
subtenancies or may, at the option of Lessor, operate as an assignment to Lessor
of any or all of such subtenancies.
16.20 Corporate Authority: If Lessee is a corporation, each individual
executing this Lease on behalf of said corporation represents and warrants that
he is duly authorized to execute and deliver this Lease on behalf of said
corporation in accordance with a duly adopted resolution of the Board of
Directors of said corporation or in accordance with the Bylaws of said
corporation, and that this Lease is binding upon said Corporation in accordance
[initials]
with its terms. If Lessee is a corporation, Lessee shall, within thirty (30)
days after execution of this Lease, deliver to Lessor a certified copy of a
resolution of the Board of Directors of said corporation authorizing or
ratifying the execution of this Lease.
16.21 Consents: Wherever in this Lease the consent of one party is required
to an act of the other party such consent shall not be unreasonably withheld.
16.22 Guarantor: In the event there is a guarantor of this Lease, said
guarantor shall have the same obligations as Lessee under Paragraphs 16.1 and
16.20 of this Lease.
16.23 Quiet Possession: Upon Lessee paying the fixed rent reserved
hereunder and observing and performing all of the covenants, conditions and
provisions on lessee's part to be observed and performed hereunder, Lessee shall
have quiet possession of the Premises for the entire term hereof subject to all
of the provisions of this Lease.
16.24 Options: In the event that the Lessee, under the terms of this Lease,
has any option to extend the term of this Lease, or any option to purchase the
premises, or any right of first refusal to purchase the premises or other
property of Lessor, then each of such options and rights are personal to Lessee
and may not be exercised or be assigned, voluntarily or involuntarily, by or to
any one other than Lessee except that it may be exercised by or assigned to any
of the entities described in paragraph 12.2 hereof for whom Lessee does not need
the consent of Lessor to assign this lease. In the event that Lessee hereunder
has any multiple options to extend this Lease a later option to extend the lease
cannot be exercised unless the prior option has been so exercised. No option may
be exercised at a time when the Lessee is in default under its obligations under
this Lease.
16.25 Multiple Tenant Building: In the event that the Premises are part of
a larger building or group of buildings then Lessee agrees that it will abide
by, keep and observe all reasonable rules and regulations which Lessor may make
from time to time for the management, safety, care, and cleanliness of the
building and grounds, the parking of vehicles and the preservation of good order
therein as well as for Lessee will promptly pay its prorata share, as
reasonably determined by Lessor, of any maintenance or repair of such portion of
the Premises or such portion of the property of which the premises are a part,
which are common areas or used by Lessee and other occupants thereof. The
violations of any such rules and regulations, or the failure to pay such prorata
share of costs, shall be deemed a material breach of this Lease by Lessee.
16.26 Hazardous Substances: Lessee covenants with Lessor to notify Lessor
of any and all hazardous substances (as defined below) generated or stored at
the premises, to comply with all obligations imposed by applicable law, rules,
regulations or requirements of any governmental authority upon such generation
and storage of hazardous substances, to prohibit any generation, storage, or
disposal or hazardous substances at the premises except as permitted by the
lease, to deliver promptly to Lessor true and complete copies of all notice
received by Lessee from any governmental authority with respect to the
generation, storage or disposal by Lessee of hazardous substances, to promptly
notify Lessor of any spills or accidents involving a hazardous substance, and to
permit reasonable entry onto the premises by Lessor for verification of
Lessee's compliance with this covenant. Lessee agrees to utilize only
transporters approved by the Environmental Protection Agency and State of
Colorado to deliver and remove hazardous substances from the premises. Lessee
also agrees to indemnify and defend Lessor (with legal counsel reasonably
acceptable to Lessor) from and against any costs, fees or expenses, (including,
without limitation, clean-up expenses, third party claims and environmental
impairment expenses, loss of rent, and reasonable attorneysr fees and expenses)
incurred by Lessor and in connection with Lessee's generation, storage or
disposal of hazardous substances. This indemnification by Lessee shall survive
the termination or expiration of this Lease. "Hazardous Substances' shall mean:
[initials]
(1) 'Hazardous substances' as defined in the Comprehensive Environmental
Response, Compensation and Liability Act, as amended;
(2) 'PCB's' as defined in 40 C.F.R. 761, or analogous regulations promulgated
under the Toxic Substances Control Act, as amended;
(3) 'Asbestos' as defined in 29 C.F.R. 1910.1001, et seq., and analogous
regulations promulgated under the Occupational Safety and Health Act of
1970, as amended;
(4) Oil and petroleum based products;
(5) Radioactive material or waste;
(6) Biological and other medical products and waste material; and
(7) 'Hazardous wastes' as defined in Resource Conservation and Recovery Act, as
amended;
as such acts may be amended from time to time, and as such terms may be
expanded by additional legislation of a general nature.
At Landlord's option, in the 60 days prior to the termination of the
lease, Landlord may require at Tenant's expense, to provide an
environmental audit to Landlord for the premises, where Landlord has a
reasonable basis for such request.
16.27 Additional Provisions:
a. There are six (6) parking spaces with these units.
b. Lessee pays for Gas, Electric and Trash Collection.
x. Xxxxxx will install a 3 ft. x 6'8" opening in office wall between
Units 1 & 2.
16.28 A late payment of 20% is due if rent is received after the 10th of
any month.
16.29 Rent breakdown is as follows:
February 15, 1996 to February 14, 1997 is $5.50 psf or $2,337.56 a month.
February 15, 1997 to February 14, 1998 is $5.75 psf or $2,443.75 a month.
One year option to renew lease
February 15, 1998 to February 14, 1999 is $6.00 psf or $2,550.00 a month.
16.30 HVAC: ANTENNAS AMERICA, INC. will have the heating and
air-conditioning units inspected and maintained semi- annually at their expense.
Maintenance of the units is defined as inspection of the compressors, coils,
controls and heat exchangers. Parts will include filters, belts and
miscellaneous supplies. All other expenses associated with the heating and
air-conditioning system will be at lessor's expense.
16.31 No outside storage of any type allowed.
16.32 Lessee is responsible for snow removal immediately outside this
unit.
16.33 As it related to Paragraph 9.4, both lessor and lessee will
have have equal rights
[initials]
The parties hereto have executed this Lease at the place on the dates specified
immediately adjacent to their respective signatures.
If this Lease has been filled in it has been prepared for submission to your
attorney for his approval. No representation or recommendation is made by the
real estate broker or its agents or employees as to the legal sufficiency, legal
effect, or tax consequences of this Lease or the transaction relating thereto.
Executed at HK Bldgs. HK Buildings
------------------------------- -----------------------------------
on 1-8-96 By /s/ Xxxxxx Xxxx
--------------------------------------- ---------------------------------
Address Xxxxxx Xxxx By
---------------------------------- ---------------------------------
00000 X. X-00 Xxxxxxxx Xx. North
---------------------------------- "LESSOR (Corporate Seal)
Xxxxx Xxxxx, XX 00000
----------------------------------
Executed at Antennas America, Inc.
------------------------------- -----------------------------------
on 1/5/96 By /s/ Xxxxx Xxxx
--------------------------------------- ---------------------------------
Address 0000 Xxxx Xx. #000 By
---------------------------------- ---------------------------------
---------------------------------- "LESSEE" (Corporate Seal)
----------------------------------
