Exhibit 10.2
Office Lease
AXIS COMMERCIAL REALTY, INC.
OFFICE LEASE
THIS LEASE, dated and entered into this 25th day of June ,
_______ __________
1996, by and between AXIS COMMERCIAL REALTY, INC., a Colorado corporation, as
agent for the Lessor, having an office at ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ (hereinafter called "Lessor") and:
CAPITAL RESERVE CORPORATION,
a Colorado corporation
(hereinafter called "Lessee").
W I T N E S S E T H:
Lessor hereby leases to Lessee and Lessee hereby leases from Lessor
certain premises in a building known as:
GREENWOOD PLAZA EAST
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
as shown outlined in red on Exhibit "A", attached hereto and made a part hereof,
consisting of approximately seven hundred fifty (750) rentable square feet,
(hereinafter referred to as the "Premises").
Lessee shall also have the right to use in conjunction with other tenants in
the building certain common facilities, hallways, rest room facilities,
elevators and stairs.
1. TERM
The term of this Lease shall be for a period of one (1) year,
commencing on July 1, 1996, ("Commencement Date") for, during and until June 30,
1997, ("Expiration Date") unless sooner terminated pursuant to any provision
hereof. In the event the Commencement Date is delayed, the Expiration Date will
be extended by the same number of days.
If the Premises are not suitable for occupancy by the above
Commencement Date because remodelling described in Paragraph 4 hereof has not
been sufficiently completed, the Commencement Date shall be extended until such
time as Lessor obtains a Certificate of Occupancy from the appropriate building
department. In such event, the Expiration Date of this Lease shall also be
extended by the same number of days as the Commencement Date is extended.
If no Certificate of Occupancy is required, then the
Commencement Date shall be extended until such date as remodelling to be
performed by Lessor pursuant to Paragraph 4 hereof has been substantially
completed so that the Lessee can take possession of the Premises. In such event,
the Expiration Date shall also be extended accordingly.
In the event the Commencement Date and the Expiration Date are
extended hereby, the parties agree to execute Exhibit "D", entitled "Acceptance
of Premises", attached hereto and incorporated herein.
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2. RENT
(a) Lessee agrees to pay Lessor for the full term a minimum
rental on said Premises in the total sum of Nine Thousand and 00/100 Dollars
($9,000.00), payable in advance in monthly installments as set forth below on
the first day of each month during the term hereof without prior notice of
demand, deduction or set off, in lawful money of the United States of America.
Rental payments shall be prorated at the rate of one-thirtieth (1/30th) of the
monthly rental per day for any partial month. Rental payments shall be paid to
Lessor at its office at ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, or at such other place or places
as Lessor may from time to time designate in writing. Lessee agrees to pay the
rent as herein provided promptly at the times and in the manner herein
specified. The minimum rental rate for the entire Lease term is Twelve and
00/100 Dollars ($12.00) per square foot per year, or Seven Hundred Fifty and
00/100 Dollars ($750.00) per month.
ADDITIONAL RENT
(b) Lessee agrees to pay additional rent as provided for in
Paragraph 3.
SECURITY DEPOSIT
(c) It is agreed that Lessee, at the time of execution of this
Lease, has deposited with the Lessor, and will keep on deposit at all times
during the term and any extended term of this Lease, the sum of Zero and 00/100
Dollars ($0.00) as security for the full and faithful performance of every
provision of this Lease to be performed by Lessee. If Lessee defaults with
respect to any provision of this Lease, including but not limited to the
provisions relating to the payment of rent, Lessor may, if such default is not
corrected within five (5) days of written notice from Lessor, use, apply or
retain all or any part of this security deposit for the payment of any rent or
any sum, in default, or for the payment of any other amount which Lessor may
spend or become obligated to spend by reasons of Lessee's default or to
compensate Lessor for any other loss or damage which Lessor may suffer by reason
of Lessee's default. If any portion of said deposit is so used or applied,
Lessee shall within five (5) days after written demand therefor deposit cash
with Lessor in an amount sufficient to restore the security deposit to its
original amount and Lessee's failure to do so shall be a material breach of this
Lease. Said deposit shall not be considered as liquidated damages and if claims
of Lessor exceed said deposit, Lessee shall remain liable for the balance of
such claims. The Lessor shall not be required to keep this security deposit
separate from its general funds and Lessee shall not be entitled to interest on
such deposit. If Lessee shall fully and faithfully perform every provision of
this Lease to be performed by it, the security deposit or any balance thereof
shall be returned to Lessee within sixty (60) days (or, at Lessor's option, to
the last assignee of Lessee's interest hereunder) of the expiration of the Lease
term and upon Lessee's vacation of the Premises. In the event of termination of
Lessor's interest in this Lease, Lessor shall transfer said deposit to Lessor's
successor in interest, whereupon, Lessee agrees to release Lessor from liability
for the return of such deposit or the accounting therefor.
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3. EXPENSE STOP
In the event the building operating expenses, as hereinafter
defined in Paragraph 6 for operating the subject building, paid for and
sustained by the Lessor in any calendar year are greater than the Actual
Operating Expenses per rentable square foot for the building for the 1996
calendar year, "Expense Stop", the Lessee shall pay to the Lessor as additional
rent for each calendar year or portion thereof an amount equal to the portion of
such additional amount as the rentable area of the Premises bears to the
rentable area of the building, as adjusted for the actual time during said
calendar year when Lessee actually leases the Premises. The liability of the
Lessee for payment of such costs shall commence on the Lease commencement date.
Lessee's pro rata share shall be based on Lessor's estimate of said costs.
Lessor shall estimate the expenses for each calendar year and shall notify the
Lessee of its pro rata share. Lessee shall then commence payments upon such
notice, as additional rent, retroactive to January 1 of the current year and on
the first day of each successive month at the same time and place stated for
payment of minimum rent. The difference between the estimated costs and the
actual costs shall be accounted for by Lessor. The necessary credit by Lessor,
or additional payment by Lessee, shall be made within thirty (30) days following
notice to Lessee of the amount due; provided, however, that no credit shall be
made Lessee should Lessee be in default on its leasehold obligations.
4. CONDITION OF PREMISES
Lessor agrees to provide the Premises to Lessee in their
present finished condition, except that Lessor agrees to remodel the Premises,
at Lessor's sole expense, as shown in the Blueprint attached hereto and
incorporated herein as Exhibit "B". Remodeling costs may include by way of
illustration but not limitation the following: demolition, new walls, doors,
painting, ceiling tile, carpet, window dividers, mechanical rearrangement,
electrical and lighting. Any remodeling undertaken by Lessee at Lessee's expense
shall also be designated in said Exhibit "B" or some other suitable document.
5. USE OF PREMISES
(a) Lessee covenants to use the Premises for general office
purposes and to use them in a careful, safe and proper manner; to pay on demand
for any damage to the Premises caused by negligent act or omission of such
Premises by Lessee, its agents or employees or of any other person entering upon
the Premises under express or implied invitation of Lessee; not to use or permit
the Premises to be used for any purposes prohibited by the laws of the United
States, the State of Colorado, the County of Arapahoe, or the ordinances of the
City of Greenwood Village; and not to commit waste, nor suffer, nor permit waste
to be committed, nor permit any nuisance on or in the Premises.
(b) Lessee agrees to keep the Premises in a neat, clean and
attractive condition; to comply properly with all laws, ordinances, and other
governmental rules and regulations concerning the Premises or the streets,
sidewalks, alleys, parks, parkways, and other public property abutting the
Premises; to use the Premises for no purpose which would render void the fire,
extended coverage and added perils insurance on the building. Lessee agrees to
pay all extra insurance premiums on the building on which the Premises are a
part if such extra insurance premiums are reasonably required as the result of
the use which Lessee shall make of the Premises.
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(c) Lessee will not at any time without obtaining Lessor's
prior written consent conduct or permit any fire, bankruptcy or auction sale on
the Premises; or change the exterior color of the building or any part thereof;
or park, operate, load or unload any truck or other delivery vehicle at any
place other than the loading area designated for such use; or use the plumbing
facilities for any purpose other than that for which they were constructed or
dispose of any foreign substance therein; or install any shades, awnings,
machinery, motors, or ducts, or install any amplifiers, loudspeakers,
phonographs, microphones, or similar devices for any purpose, or use any
advertising medium, which may be heard or seen inside or outside the building;
permit any rubbish or garbage to accumulate on the Premises in other than
rubbish removal areas; or install, maintain, alter, or operate any sign or
display visible to public view inside or outside of the building, except as
approved by Lessor; or store materials, supplies, equipment or other materials
outside the building or outside of the space occupied by Lessee.
(d) Lessee will not at any time deface or injure any portion
of the Premises or burn anything in or about the Premises; or keep or display
any merchandise or other object on or otherwise obstruct any sidewalks,
stairways, walkways, streets, parks or parkways; or use or permit the use of any
portion of the Premises as a living quarters, sleeping rooms or for similar
uses.
(e) The Rules and Regulations attached hereto and marked
Exhibit "C", as well as rules and regulations as may be hereafter adopted from
time to time by Lessor for the safety, care and cleanliness of the Premises and
the preservation of good order thereon, are hereby expressly made a part hereof,
and Lessee agrees to obey all such Rules and Regulations.
6. BUILDING OPERATING EXPENSES
"Building operating expenses" shall mean any and all expenses
incurred by the Lessor in connection with the ownership, maintenance, operation,
upkeep and repair of the building including the equipment, adjacent walks,
loading and parking areas, landscaped areas, and other improvements to the
building, including but not limited to salaries, hourly wages, payroll taxes,
social security, uniforms and dry cleaning thereof for employees of the Lessor
engaged in the operation, maintenance and repair of the building; the costs of
all charges for electricity, steam and water or other utilities furnished to the
building, including any taxes thereon, other than those chargeable to individual
tenants by reason of their extraordinary consumption of such utilities; the
costs of all charges for insurance directly relating to the use and/or the
operation of the building as aforesaid; the costs of building and cleaning
supplies and materials; the costs of all charges for cleaning, maintenance and
service contracts and other services with independent contractors, including
snow and trash removal and landscaping; salaries of building superintendents and
assistants; reasonable allowance for management fees and services; and overhead
and legal expenses directly relating to the use and/or operation of the
building; real estate taxes and other taxes and assessments incurred in
connection with the ownership, operation and maintenance of the building; and
all other costs and expenses reasonably necessary in the operation and
maintenance of a first-class office building. "Building operating expenses"
shall not include interest on debt, capital retirement of debt, capital
expenditures (except for capital expenditures which reduce operating expenses,
in which case such expenditures shall be amortized over the life of the objects
for such capital expenditures), or any cost which is charged to and collected
from any tenant of the building on account of negligent or willful act or
omission of such tenant or for which such tenant may be liable, contractually or
otherwise.
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7. MAINTENANCE, ALTERATIONS AND REPAIRS
(a) Lessee shall keep the Premises in good condition and
repair and said Premises shall not be altered, repaired or changed without the
written consent of Lessor, which consent shall not be unreasonably withheld.
Lessee shall keep the Premises and building of which the Premises are a part
free and clear of any liens, and shall indemnify, hold harmless and defend
Lessor from any liens and encumbrances arising out of any work performed or
materials furnished by or at the direction of Lessee. In the event any lien is
filed, Lessee shall do all acts necessary to discharge any lien within ten (10)
days of filing; or, if Lessee desires to contest any lien, then Lessee shall
deposit with Lessor such security as Lessor shall demand to insure payment of
the lien claim. In the event Lessee shall fail to pay any lien claim when due,
or fail to deposit the security with Lessor, then Lessor shall have the right to
expend all sums necessary to discharge the lien claim, and Lessee shall pay as
additional rental, when the next rental payment is due, all sums expended by
Lessor in discharging any lien, including attorney's fees and costs. Lessor
shall save and hold Lessee harmless from any loss or damage arising from any
lien or encumbrance asserted against the demised Premises due to any act of
Lessor.
(b) Lessee shall make no repairs, alterations, additions or
improvements to the Premises or any part thereof without obtaining the prior
written approval of Lessor. Lessor may impose as a condition to the aforesaid
consent such requirements as Lessor may reasonably deem necessary in its sole
discretion, including without limitation thereto, the manner in which the work
is done, a right of approval of the contractor by whom the work is to be
performed, and the times during which it is to be accomplished. If Lessee
requests Lessor to make repairs, alterations, additions or improvements to the
Premises, Lessee agrees to pay Lessor therefor in an amount equal to Lessor's
substantiated direct costs plus fifteen percent (15%) to cover Lessor's overhead
costs, which sums shall be payable fifteen (15) days after receipt of Lessor's
invoice by Lessee. All such repairs, alterations, additions or improvements
shall at the expiration or earlier termination of the Lease become the property
of Lessor and shall remain upon and be surrendered with the Premises, unless
agreed otherwise by the parties in writing. Lessee shall, on termination of the
Lease, surrender the Premises to Lessor in good condition and repair, normal
wear and tear excepted.
8. BUILDING SERVICES
(a) As a part of the rent, Lessor agrees to furnish to the
Premises during hours of generally recognized business days, as stated in
Exhibit "C", Paragraph 1, and subject to the Rules and Regulations of the
building which the Premises are a part, water and electricity suitable for the
intended use of the Premises, heat and air conditioning required in Lessor's
reasonable judgment for the comfortable use and occupation of the Premises, and
usual janitorial and maintenance service in the building. Lessor shall maintain
and keep in repair plumbing, electrical wiring, heating and air conditioning
equipment required to supply said utilities to the Premises. Lessor shall also
maintain and keep lighted the common stairs and entries during generally
recognized business days, and shall maintain and keep in repair the general
structure, roof and windows of the building of which the Premises are a part.
(b) Lessor shall not be liable for and Lessee shall not be
entitled to any abatement or reduction of rental by reason of Lessor's failure
to furnish any of the foregoing services, when such failure is caused by
accident, breakage, repairs, strikes, lockouts or other labor disturbances or
labor disputes of any character, riots, civil disturbances or by any other cause
beyond the reasonable control of Lessor, provided that Lessor corrects such
failure of services with due diligence and within a reasonable period of time
after notice thereof.
(c) Wherever heat generating machines or equipment, including
telephone equipment, are used in the Premises which substantially affect the
temperature otherwise maintained by the air conditioning system, Lessor reserves
the right to install supplementary air conditioning units in the Premises and
the cost thereof, including the cost of installation, and the costs of operation
and maintenance thereof, shall be paid by Lessee to Lessor upon demand by
Lessor.
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(d) Lessee will not without the consent of Lessor use any
apparatus or device in the Premises which will in any way unreasonably increase
the amount of electricity or water usually furnished or supplied for use of the
Premises; nor connect with electrical current, except through existing
electrical outlets in the Premises, or water pipes, any apparatus or device for
the purpose of using electric current or water. If Lessee shall require water or
electric current in excess of that usually furnished or supplied for the use of
the Premises, Lessee shall first procure the consent of the Lessor to the use
thereof and Lessor may cause a water meter or electric current meter to be
installed in the Premises so as to measure the amount of water and electric
current consumed for any such other use. The costs of any such meters and of
installation, maintenance and repair thereof shall be paid for by Lessee, and
Lessee agrees to pay to Lessor promptly upon demand thereof by Lessor for all
such water and electric current consumed, as shown by said meters, at the rates
charged for such services by the local public authority, or the local public
utility, as the case may be furnished the same.
9. PERSONAL PROPERTY TAXES
During the term hereof, Lessee shall pay prior to delinquency
all taxes assessed against and levied upon fixtures, furnishings, equipment and
all other personal property of Lessee contained in the Premises; and Lessee
shall cause said fixtures, furnishings, equipment and other personal property to
be assessed and billed separately from the real and personal property of Lessor.
In the event any or all of the Lessee's fixtures, furnishing, equipment and
other personal property shall be assessed and taxed with the Lessor's real
property, the Lessee shall pay to Lessor its share of such taxes within ten (10)
days after delivery to Lessee by Lessor of a statement in writing setting forth
the amount of such taxes applicable to the Lessee's property. Lessor will pay
when due all real estate and personal property taxes for which it is responsible
under this Lease.
10. QUIET ENJOYMENT
Lessor covenants that Lessee shall peaceably and quietly
possess and enjoy the Premises as against all persons claiming any right, title
or interest in and to said Premises as long as Lessee shall faithfully perform
the covenants, obligations, agreements and conditions of this Lease. Lessor
reserves the right to subject its interest in this Lease at all times to the
lien of any mortgages or deeds of trust hereafter placed upon the building or
any part thereof and to grant to other Lessees in the building rights to use the
common areas and other portions of the building not within the Premises.
11. PARKING
Lessee shall be entitled throughout the term of this Lease to
use the parking area on a non-exclusive open basis, which may at Lessor's option
be assigned or unassigned space. Lessor reserves the right to exercise his
option to assign parking spaces at any time during the term of this Lease.
Lessee will cooperate with Lessor if it shall become necessary to temporarily
interrupt the use of the parking area due to reconstruction or repair of the
parking area.
12. ENTRY BY LESSOR
Lessor and its agents shall have the right to enter the
Premises at all reasonable times for the purpose of examining or inspecting the
same, to supply janitorial services and any other service to be provided by
Lessor to Lessee hereunder, to show the same to prospective purchasers or
tenants of the building, and to make such alterations, repairs, improvements or
additions to the Premises or to the building of which they are a part as Lessor
may deem necessary or desirable. If, during the last month of the term hereof,
Lessee shall have removed substantially all of its property therefrom, Lessor
may immediately enter and alter, renovate and redecorate the Premises without
elimination or abatement of rent or incurring liability to Lessee.
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13. PREMISES VACATED DURING TERM OF LEASE
If the Lessee shall abandon or vacate said Premises before the
end of the term of this Lease, the Lessor may, at its option and without notice,
enter said Premises, remove any signs of the Lessee therefrom, and relet the
same, or any part thereof, as it may see fit, without thereby voiding or
terminating this Lease, and, for the purpose of such reletting, the Lessor is
authorized to make any repairs, changes and/or alterations necessary or
desirable for the purpose of such reletting, and if a sufficient sum shall not
be realized from such reletting (after payment of all the costs and expenses of
such repairs, changes or alterations, and the expense of such reletting and the
collection of rent accruing therefrom), each month to equal the monthly rental
agreed to be paid by the Lessee under the provisions of this Lease, then the
Lessee agrees to pay such deficiency each month upon demand therefor.
14. REMOVAL OF LESSEE'S PROPERTY
If the Lessee shall fail to remove all effects from said
Premises upon the abandonment thereof or upon the termination of this Lease for
any cause whatsoever, the Lessor, at its option, may remove the same in any
manner that it shall choose, and store the said effects without liability to the
Lessee for loss thereof, and the Lessee agrees to pay the Lessor on demand any
and all expenses incurred in such removal, including court costs and attorney's
fees and storage charges on such effects for any length of time that the same
shall be in the Lessor's possession; or the Lessor may, at its option, without
notice, sell in a commercially reasonable manner said effects, or any of the
same, at public or private sale and without court order, for such prices as the
Lessor may obtain, and apply the proceeds of such sale upon any amounts due
under this Lease from the Lessee to the Lessor and upon the expense incident to
the removal and said effects, rendering the surplus, if any, to the Lessee.
15. EMINENT DOMAIN
In the event the Premises, or any part thereof, shall be taken
by an exercise of the right of eminent domain or by action of any public or
other authority during this Lease or any extension thereof, and such taking
shall render the Premises unusable, then this Lease shall terminate as of the
date of such taking. The Lessor reserves all rights to damages to said Premises
and the leasehold hereby created, hereafter accruing by an exercise of the right
of eminent domain, or by reason of anything lawfully done and in pursuance of
any public or other authority; and by way of confirmation, the Lessee grants to
the Lessor all of the Lessee's right to such damages and covenants to execute
and deliver such further instruments of assignment thereof as the Lessor may
from time to time request. Nothing in this paragraph shall give Lessor any
interest in, or preclude Lessee from, seeking on its own account any award
attributable to the taking of personal property or trade fixtures belonging to
Lessee, or for the interruption of Lessee's business, or for any moving or
relocation expenses, or for any other separate claim which does not reduce or
adversely affect in any way the amount of Lessor's award.
16. SALE BY LESSOR
In the event of a sale or conveyance by Lessor of the building
containing the Premises, such sale or conveyance shall operate to release Lessor
from any future liability upon any of the covenants or conditions, express or
implied, herein contained in favor of Lessee, and in such event Lessee agrees to
look solely to the responsibility of the successor in interest of Lessor in and
to this Lease. This Lease shall not be affected by any such sale, and the Lessee
agrees to attorn to the purchaser or assignee.
17. DAMAGE TO PROPERTY; INJURY TO PERSONS
(a) Lessee hereby waives all claims or liability Lessee or
Lessee's successors or assigns may have against Lessor, and Lessee hereby
indemnifies and agrees to hold Lessor harmless from and to defend Lessor against
any and all costs, claims or liability or any injury or damage to any person or
property whatsoever; (1) occurring in, on or about the Premises or any part
thereof, and (2) occurring in, on or about any facilities (including without
limiting the generality of the term "facilities", elevators, stairways, passage
ways, hallways, bathrooms, health and exercise areas, conference rooms
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and parking structures and areas), the use of which Lessee may have in
conjunction with other tenants of the building, when such injury or damage is
caused solely by the act, neglect, fault of or omission of any duty with respect
to the same by Lessee, its agents, contractors, employees or invitees. Lessor
shall not be liable to Lessee for any damage by or from any act of negligence of
any co-tenant or other occupant of the same building, or by any owner or
occupant of adjoining or contiguous property, not caused or contributed to by
Lessor. Lessee agrees to pay for all damages to the building, as well as all
damages to tenants or occupants thereof, by Lessee's misuse or neglect of said
Premises and facilities.
(b) Lessor or its agents shall not be liable for any damage to
property entrusted to Lessor, its agents or employees of the building manager,
if any, nor for the loss of or damage to any property by theft or otherwise, by
any means whatsoever, nor for any injury or damage to persons or property
resulting from fire, explosion, falling plaster, steam, gas, electricity, water
or rain which may leak from any part of the building or from the pipes,
appliances, or plumbing works therein or from the roof, street or subsurface or
from any other place or resulting from dampness or any other cause whatsoever,
unless caused by or due to negligence of Lessor, its agents, servants or
employees. Lessee shall give prompt notice to Lessor in case of fire or
accidents in the Premises or in the building or other defects therein or in the
fixtures or equipment.
(c) Anything contained herein to the contrary notwithstanding,
the Lessor and the Lessee and all parties claiming under them hereby mutually
release and discharge each other from all claims and liabilities arising from
any cause whatsoever to the extent that it is covered by insurance on the leased
property and/or Premises or covered by insurance in connection with the property
and/or activities conducted on the leased property and/or Premises, regardless
of the cause of the damage or loss. This release shall be valid and binding only
to the extent that it is permissible and does not adversely affect insurance
coverage on the Premises and the building. The parties shall endeavor to obtain
a Waiver of Subrogation Rights from the insurance company and the Lessee hereby
agrees to pay any increased costs of such insurance coverage resulting from said
Waiver of Subrogation Rights.
18. INDEMNIFICATION AND INSURANCE
(a) Lessor shall not be liable and Lessee hereby waives all
claims against Lessor for any damage to any property or any injury to any person
in or about the Premises or the Building by or from any cause whatsoever,
(including without limiting the foregoing, rain or water leakage of any
character from the roof, windows, walls, basement, pipes, plumbing works or
appliances, the Building not being in good condition or repair, gas, fire, oil,
electricity or theft); except that Lessor will indemnify and hold Lessee
harmless from such claims to the extent caused by the negligent or willful act
of Lessor, or its agents, employees or contractors. Lessee shall defend,
indemnify, and save Lessor harmless from and against any and all claims,
actions, lawsuits, damages, liability, and expense (including, without
limitation, attorneys' fees) arising from: (a) the act, neglect, fault, or
omission to meet the standard imposed by any duty with respect to the loss,
damage, or injury by Lessee, its agents, servants, employees, contractors,
customers or invitees; (b) the conduct or management of any work or thing
whatsoever done by the Lessee in or about the Premises or from transactions of
the Lessee concerning the Premises; (c) Lessee's failure to comply with any and
all governmental laws, ordinances and regulations applicable to the use of the
Premises and its occupancy; or (d) any breach or default on the part of the
Lessee in the performance of any covenant or agreement on the part of the Lessee
to be performed pursuant to the Lease. The provisions of this Article shall
survive the termination of this Lease with respect to any claims or liability
occurring prior to such termination.
(b) Lessee shall at its expense carry with a company
acceptable to Lessor, and keep in full force and effect, public liability
insurance with a minimum single limit of One Million Dollars ($1,000,000.00).
Said insurance policy shall name Lessor, by endorsements, as an additional
insured and shall not be cancelable as to Lessor, by either Lessee or said
insurance company without thirty (30) days written notice to Lessor. Lessee
shall furnish Lessor a Certificate of Insurance as to such policy.
(c) Lessor agrees also to maintain public liability insurance
on the building in which the Premises are located in the amount of One Million
Dollars ($1,000,000.00) minimum single limit.
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19. DAMAGE OR DESTRUCTION
(a) Lessor shall purchase, carry and keep in full force and
effect on the building fire, extended coverage and added perils insurance in the
amount of eighty percent (80%), or more at Lessor's election, of the replacement
cost of said building, boiler and machinery coverage in an amount deemed
appropriate by Lessor, and rent insurance adequate to pay Lessee's rental
obligations for nine (9) months. Lessor and any holder or holders of any
mortgages or deeds of trust covering the Premises, or the property of which the
same are a part thereof, shall be the sole insured under said policy and shall
be entitled to all proceeds thereunder.
(b) In the event the Premises or the building of which the
same are a part are damaged by fire or other insured casualty and the insurance
proceeds have been made available therefor by the holder or holders of any
mortgages or deeds of trust covering the Premises, or the property of which the
same are a part, the damage shall be repaired by and at the expense of Lessor to
the extent of such insurance proceeds available therefor provided such repairs
can, in Lessor's sole opinion, be made within ninety (90) days after the
occurrence of such damage without the payment of overtime or other premiums, and
until such repairs are completed, the rent shall be abated in proportion to the
part of the Premises which is unusable by Lessee in the conduct of its business
(but there shall be no abatement of rent by reason of any portion of the
Premises being unusable for a period equal to one (1) day or less). If the
damage is due to the negligent act or omission of Lessee or its employees,
agents or invitees, there shall be no abatement of rent. Lessor's obligation to
promptly and fully restore the Premises to their condition prior to the
destruction or damage is subject always to delays caused by acts of God,
strikes, lockouts, inability to get materials, accidents, fire or matters beyond
the control of Lessor, for which Lessor cannot be held responsible by Lessee. If
repairs cannot, in Lessor's sole opinion, be made within ninety (90) days,
Lessor may at its option make them within a reasonable time, and in such event,
this Lease shall continue in effect and the rent shall be apportioned in the
manner provided above. If Lessor does not elect as aforesaid within forty-five
(45) days, then either party may, by written notice to the other, cancel this
Lease as of the date of the occurrence of such damages. A total destruction of
the building in which the Premises are located shall automatically terminate
this Lease.
(c) Except as provided in Paragraph 19(b) above, there shall
be no abatement of rent and no liability of Lessor by reason of any injury to or
interference with Lessee's business or property arising from the making of any
repairs, alterations or improvements in or to any portion of the building of the
Premises, or in or to fixtures, appurtenances and equipment therein, unless
caused by the negligent act or omission of agents, employees, representatives or
servants of Lessor. Lessee understands that Lessor will not carry insurance of
any kind on Lessee's furniture and furnishings or on any fixtures or equipment
removable by Lessee under the provisions of this Lease; and that Lessor shall
not be obligated to repair any damage thereto or replace the same unless caused
by the negligent act or omission of agents, employees, representatives or
servants of Lessor.
The Lessor shall not be required to repair any injury or damage by fire or
other cause, or to make any repairs or replacements of improvements installed in
the Premises by or for Lessee, unless caused by the negligent act or omission of
agents, employees, representatives or servants of Lessor.
(d) In the event that the building in which the demised
Premises is situated may be destroyed to the extent of not less than
thirty-three and one-third percent (33-1/3%) of the replacement cost thereof,
Lessor may elect to terminate this Lease, whether the Premises be injured or
not.
20. INVOLUNTARY TERMINATION
If at the date fixed as the commencement of the term of this
Lease, or if at any time during the term hereby demised, there shall be filed by
or against Lessee in any court pursuant to any statute, either the United States
or of any State, a petition in bankruptcy or insolvency or for reorganization or
for the appointment of a receiver or trustee of all or a portion of Lessee's
property, and within thirty (30) days thereof Lessee fails to secure a discharge
thereof, or if Lessee makes an assignment for the benefit of creditors or
petitions for or enters into an arrangement, this Lease, at the option of
Lessor, exercised within a reasonable time after notice of the happening of any
one or more of such events, may be cancelled and terminated, in which even
neither Lessee nor any person claiming
9
through or under Lessee by virtue of any statute or any order of any court shall
be entitled to possession or to remain in possession of the Premises demised,
but shall forthwith quit and surrender the Premises; and Lessor, in addition to
the other rights and remedies Lessor has by virtue of any other provision
contained in this Lease or by virtue of any statute or rule of law, may retain
as liquidated damages any rent, security deposit or monies received by it from
Lessee or others on behalf of Lessee.
21. INABILITY TO PERFORM
This Lease and the obligation of Lessee to pay rent hereunder
and perform all of the other covenants and agreements hereunder on the part of
Lessee to be performed shall in no way be affected, impaired or excused because
Lessor is temporarily unable to fulfill any of its obligations under this Lease
or is delayed in supplying any service expressly or impliedly to be supplied or
is unable to make, or is delayed in making any repairs, additions, alterations,
or decorations or is unable to supply or is delayed in supplying any equipment
or fixtures, if Lessor is prevented or delayed from doing so by reason of an act
of God, strike, labor troubles or any outside cause whatsoever, including but
not limited to riots and civil disturbances or governmental preemption in
connection with a national emergency or by reason of any rule, order or
regulation of any department or subdivision thereof of any government agency or
by reason of the conditions of supply and demand which have been or are affected
by way or other emergency. Lessor agrees to use due diligence in attempting to
correct such default and to attempt to reinstitute any service which it is
obligated to provide within a reasonable period of time.
22. RIGHT OF LESSOR TO PERFORM
Except as otherwise contained herein, or unless otherwise
agreed to in writing by the parties, all covenants and agreements to be
performed by Lessee under any of the terms of this Lease shall be performed by
Lessee at Lessee's sole cost and expense and without abatement of rent. If the
Lessee shall fail to pay any sum of money, other than rent, required to be paid
by it hereunder, or shall fail to perform any other act on its part to be
performed hereunder and such failures shall continue for twenty (20) days after
notice thereof by the Lessor, the Lessor may, but shall
not be obligated to do so, and without waiving or releasing the Lessee from any
obligations of the Lessee, make any such payment or perform any such other act
on the Lessee's part to be made or performed as in this Lease provided. All sums
so paid by Lessor and all necessary incidental costs together with interest
thereon at the rate of eighteen percent (18%) per annum, or the prime interest
rate as charged by Citibank of New York plus six percent (6%), whichever
interest rate is greater, from the date of such payment by the Lessor shall be
payable to the Lessor by Lessee on demand, and the Lessee covenants to pay such
sums, and the Lessor shall have (in addition to any other right or remedy of the
Lessor) the same rights and remedies in the event of the nonpayment thereof by
the Lessee as in the case of default by the Lessee in the payment of rent.
23. DEFAULT
(a) In the event of any breach of this Lease by Lessee which
is not cured within ten (10) days of written notice by Lessor (three [3] days in
the case of non-payment of rent) of such breach, Lessee agrees that the full
amount of any abated rent, plus the full amount of any leasing commission and
tenant improvements Lessor has paid in connection herewith, shall become due and
payable to Lessor upon any monetary default on the part of the Lessee which is
not corrected within said ten (10) days from written notice from Lessor.
Furthermore, in the event of Lessee's insolvency or liquidation, then Lessor,
besides other rights or remedies it may have, shall have the immediate right of
reentry and may remove all persons and property from the Premises, such property
may be removed and stored in any other place in the building in which the
Premises are situated or in any other place, for the account of and at the
expense and at the risk of Lessee. Lessee hereby releases Lessor from all claims
for damages which may be caused by Lessor's reentry and taking possession of the
Premises or removing or storing the furniture and property as herein provided.
Lessee further agrees that it will save and hold Lessor harmless from any loss,
costs or damages occasioned Lessee thereby, and no such reentry shall be
considered to be a forcible entry.
10
(b) Should Lessor elect to reenter, as herein provided, or
should it take possession pursuant to legal proceedings or pursuant to any
notice provided for by law, it may either terminate this Lease, or it may from
time to time, without terminating this Lease, relet said Premises or any part
thereof in a reasonable fashion and for such term or terms and at such rental or
rentals and upon such other terms and conditions as Lessor in its sole
discretion may deem advisable, with the right to make alterations and repairs to
said Premises. Rentals received by Lessor from such reletting shall be applied
as follows: first, to the payment of any indebtedness, other than rent, due
hereunder from Lessee to Lessor; second, to the payment of any cost of
reletting; third, to the payment of the cost of any alterations and repairs to
the Premises; fourth, to the payment of rent due and unpaid hereunder; and the
residue, if any, shall be held by Lessor and applied in payment of future rent
as the same may become due and payable hereunder. Should such rentals received
from such reletting during any month be less than that agreed to be paid during
that month by Lessee hereunder then Lessee shall pay such deficiency to Lessor.
Such deficiency shall be calculated and paid monthly.
(c) No such reentry or taking possession of said Premises by
Lessor shall be construed as an election on its part to terminate this Lease
unless a written notice of such intention be given to Lessee, or unless the
termination thereof be decreed by a court of competent jurisdiction. Should
Lessor at any time terminate this Lease for any breach, in addition to any other
remedy it may have, it may recover from Lessee damages consisting of the rent
reserved in this Lease for the remainder of the stated term.
(d) No payments of money by the Lessee to the Lessor after the
termination of this Lease, in any manner, or after the giving of any notice
(other than a demand for the payment of money) by the Lessor to the Lessee,
shall reinstate, continue or extend the term of this Lease or affect any notice
given to the Lessee prior to the payment of such money, it being agreed that
after the service of notice or the commencement of a suit or after final
judgment granting the Lessor possession of said Premises, the Lessor may receive
and collect any sums of money whether as rent or otherwise, shall not waive said
notice, or in any manner affect any pending suit or any judgment theretofore
obtained.
24. NON-PAYMENT OF RENT AND OTHER AMOUNTS DUE
If the rent due from Lessee to Lessor hereunder is paid later
than the 5th day of the month when due, a late fee will be charged calculated at
the rate of ten percent (10%) of the month then due, but the payment of such fee
shall not excuse or cure any default by Lessee under this Lease.
25. HOLDING OVER
If Lessee shall remain in possession of the Premises after
expiration of the term of this Lease, or any extension thereof, without written
agreement as to such possession, then Lessee shall be a tenant from
month-to-month at a monthly rental equal to one and one-half (1-1/2) times the
highest monthly rate provided for herein. The rental shall be paid in advance on
the first day of each month during such hold over term. Such tenancy shall
continue until terminated by Lessor or until Lessee shall have given Lessor a
written notice at least one (1) month prior to the date of termination of such
monthly tenancy of its intention to terminate such tenancy. Such holding over
shall not constitute an extension of this Lease.
26. ATTORNEY'S FEES
In case suit shall be brought for an unlawful detainer of the
said Premises for the recovery of any rent due under the provisions of this
Lease, or because of the breach of any other covenant herein contained, on the
part of Lessee to be kept or performed, Lessee shall pay to Lessor all
reasonable attorney's fees, in the event Lessor prevails in said litigation. In
the event Lessee shall bring suit for breach of Lessor's covenants herein
contained and shall prevail therein, or shall prevail in a suit brought by
Lessor as herein provided, Lessor shall pay to Lessee all reasonable attorney's
fees.
11
27. WAIVER
The waiver by either party of any breach of any term, covenant
or condition herein contained shall not be deemed to be a waiver of such term,
covenant or condition of any subsequent breach of the same, or any other term,
covenant or condition herein contained. The acceptance of rent hereunder shall
not be construed to be a waiver of any breach by Lessee of any term, covenant or
condition of this lease, regardless of Lessor's knowledge of such breach at the
time of acceptance of the rent. It is understood and agreed that the remedies
herein given to the parties shall be cumulative, and the exercise of any one
remedy by a party shall not be the exclusion of any other remedy.
28. NOTICE
Any notice from Lessor to the Lessee or from the Lessee to the
Lessor shall be deemed duly served if mailed by registered or certified mail,
addressed to the Lessee at said Premises, or to a place Lessee may designate in
writing from time to time, whether or not Lessee has departed from, vacated or
abandoned the Premises, or to the Lessor at the place from time to time
established for the payment of rent, and the customary registered or certified
mail receipt shall be conclusive evidence of such service.
29. SUBLETTING AND ASSIGNMENT
Lessee agrees that it will not sublet the Premises, or any
part thereof without the written consent of the Lessor first had and obtained. A
consent to one subletting, occupation or use by any other person shall not be
deemed to be a consent to any subsequent subletting, occupation or use by
another person. Any such subletting without such consent shall be void, and
shall, at the option of Lessor, terminate this Lease. This Lease shall not, nor
shall any interest therein, be assignable, as to the interest of Lessee, by
operation of law, without the written consent of Lessor.
30. SUBORDINATION
This Lease is subject and subordinate to all ground and
underlying leases, mortgages, and deeds of trust which now or hereafter may
affect the real property of which the Premises form a part or affect the ground
or underlying leases, and to all renewals, modifications, consolidations,
replacements and extensions thereof. It is further agreed that this Lease may,
at the option of the Lessor, be made subordinate to any ground or underlying
leases, mortgages or deeds of trust which may hereafter affect the real property
of which the Premises form a part or affect the ground or underlying leases, and
that Lessee, or its successors in interest, will execute and deliver upon the
demand of Lessor any and all reasonable instruments desired by Lessor
subordinating in the manner requested by Lessor this Lease to such lease,
mortgages or deeds of trust.
31. ESTOPPEL
Lessee shall, from time to time, upon not less than ten (10)
days prior written notice from the Lessor, execute, acknowledge and deliver to
the Lessor a statement in writing 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 dates to which rental and other charges are paid in advance,
if any, and acknowledging that there are not, to Lessee's knowledge, any uncured
defaults on the part of Lessor hereunder, or specifying such defaults if they
are claimed. It is expressly understood and agreed that any such statement may
be relied upon by any prospective purchaser, encumbrancer or subtenant, on all
or any portion of the real property of which the Premises are a part. The
failure of Lessee to deliver such statement within such time shall be conclusive
upon Lessee that this Lease is in full force and effect, and that there are no
uncured defaults in the performance hereunder and that not more than two (2)
months' rental has been paid in advance by Lessee.
12
32. RELOCATION OF PREMISES
(a) CONDITIONS. For the purpose of maintaining an economical
----------
and proper distribution of tenants throughout the building acceptable to Lessor,
Lessor shall have the right from time to time during the term of this Lease to
relocate the Lessee in the building subject to the following terms
and conditions:
i. The rentable area of the new location in the
building shall be no less than equal size to the Premises, provided the amount
of rent payable under this Lease does not increase;
ii. Lessor shall pay the cost of providing tenant
improvements in the new location comparable to the tenant improvements in the
Premises to the reasonable satisfaction of the Lessee; and
iii. Lessor shall pay the expenses reasonably
incurred by Lessee in connection with such relocation of Premises, including but
not limited to costs of moving, door lettering, telephone relocation and
reasonable quantities to match the stationery used by Lessee prior to such
relocation.
(b) NOTICE. Lessor shall deliver to Lessee written notice of
Lessor's election to relocate the Lessee, specifying the new location and the
amount of rent payable therefore at least thirty (30) calendar days prior to the
effective date of the relocation. If the relocation of the Premises is not
acceptable to Lessee, Lessee for a period of ten (10) calendar days after
receipt of Lessor's notice to relocate shall have the right to terminate this
Lease effective thirty (30) calendar days after delivery of written notice to
Lessor. Lessee shall give such notice of its intent to terminate the Lease in
writing to Lessor.
33. MISCELLANEOUS PROVISIONS
(a) The words "Lessor" and "Lessee" as used herein shall
include the plural as well as the singular. Words used in masculine gender
include the feminine and neuter. If there be more than one Lessee, the
obligations hereunder imposed upon Lessee shall be joint and several. The titles
to the paragraphs of this Lease are not a part of this Lease and shall have no
effect upon the construction or interpretation of any part hereof.
(b) Time is of the essence of this Lease, and each and all of
its provisions.
(c) Submission of this instrument for examination or signature
by Lessee does not constitute a reservation of or option for lease, and it is
not effective as a lease or otherwise until execution and delivery by both
Lessor and Lessee.
(d) Exhibits, clauses, plats, and riders, if any, signed by
Lessor and Lessee and endorsed on or affixed to this Lease are a part hereof,
and in the event of variation or discrepancy, the duplicate original hereof,
including such clauses, plats and riders, if any, held by Lessor shall control.
Rules and Regulations attached hereto are hereby specifically made a part of
this Lease, whether signed by Lessee or not.
(e) Any provision of this Lease which shall prove to be
invalid, void or illegal shall in no way affect, impair or invalidate any other
provision hereof, and such other provisions shall remain in full force and
effect.
(f) This Lease contains the entire agreement between the
parties and any agreement hereafter made shall be ineffective to change, modify
or discharge it in whole or in part, unless such agreement is in writing and
signed by the party sought to be charged.
(g) This Lease shall be governed by and construed pursuant to
the laws of the State of Colorado.
13
(h) Lessee hereby grants Lessor permission to obtain from time
to time such credit references as Lessor deems appropriate.
34. SUCCESSORS AND ASSIGNS
The covenants and conditions herein contained shall, subject
to the provisions as to assignment, apply to and bind the heirs, successors,
executors, administrators and assigns of the parties hereto and all of the
parties hereto shall be jointly and severally liable hereunder.
35. CORPORATE AUTHORIZATION
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 and that this Lease is binding upon said corporation in accordance
with its terms. Lessee agrees to provide Lessor with such a resolution within
five (5) days of the execution of this Lease.
36. ADA COMPLIANCE Lessee shall not cause or permit any violation of
the Americans with Disabilities Act (the "ADA") to occur upon or about the
Premises by Lessee, its agents, employees, contractors or invitees. Lessee shall
indemnify, defend and hold Lessor harmless from any and all claims, judgments,
damages, penalties, fines, costs, liabilities or losses (including, without
limitation, diminution in value of the Premises, damages for the loss or
restriction on use of rentable or usable space or of any amenity of the
Premises, damages arising from any adverse impact on marketing of space of the
Premises, and sums paid in settlement of claims, attorney's fees, consultation
fees and expert fees) which arise during or after the term as a result of such
violation. This indemnification of Lessor by Lessee includes, without
limitation, costs incurred in connection with any investigation of site
conditions or any remedial work required by any federal, state or local
governmental agency or political subdivision because of any ADA violation
present on or about the Premises. Lessee shall be permitted to make such
alterations to the Premises as may be necessary to comply with the ADA, at
Lessee's sole expense and upon the prior written consent of Lessor. Without
limiting the foregoing, if the presence of any ADA violation on the Premises
caused or permitted by Lessee results in remedial work on the Premises, Lessee
shall promptly take all actions at its sole expense as are required by any
federal, state or local governmental agency or political subdivision to comply
with the ADA; provided that Lessor's consent to such actions shall first be
obtained. Lessor's consent under this section shall not be unreasonably
withheld.
37. EXHIBITS
See Exhibits "A", "B", "C", "D" and "E" attached hereto and
incorporated herein by reference.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease the day
and year first above written.
LESSEE: LESSOR:
CAPITAL RESERVE CORPORATION, AXIS COMMERCIAL REALTY,INC.,
a Colorado corporation a Colorado corporation,
Agent for Lessor
By: /s/▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/▇▇▇▇ ▇▇▇
______________________ _________________________
▇▇▇▇▇ ▇▇▇▇▇▇
Title: PRESIDENT Title:
__________________ __________________________
EXHIBIT "E"
ADDENDUM TO OFFICE LEASE
This Addendum to Office Lease is hereby attached to and made a
part of that certain Office Lease by and between AXIS COMMERCIAL REALTY, INC., a
Colorado corporation as Agent for Lessor ("Lessor") and CAPITAL RESERVE
CORPORATION, a Colorado corporation ("Lessee"), pertaining to ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, 7860 East ▇▇▇▇▇ Place, Englewood, Colorado (the
"Office Lease").
Notwithstanding anything contained in the Office Lease to the
contrary, the parties hereto agree to the following:
1. Lessor and Lessee shall have the right to cancel the Lease with
ninety (90) days written notice.
2. Except as specifically set forth herein, all other terms,
conditions, rights and obligations of the Office Lease shall remain in full
force and effect and binding upon the parties.
EXECUTED this 25th day of June , 1996.
_______ ____________________________
LESSEE: LESSOR:
CAPITAL RESERVE CORPORATION, AXIS COMMERCIAL REALTY, INC.,
a Colorado corporation a Colorado corporation,
Agent for Lessor
By: /s/▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/▇▇▇▇ ▇▇▇
_________________________ _________________________
▇▇▇▇▇ ▇▇▇▇▇▇
Title: PRESIDENT Title: PRESIDENT
______________________ ______________________
EXHIBIT "F"
ADDENDUM TO OFFICE LEASE
This Addendum to Office Lease is hereby attached to and made a
part of that certain Office Lease dated June 25, 1996 for CAPITAL RESERVE
CORPORATION, a Colorado corporation ("Lessee"), pertaining to ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, 7860 East ▇▇▇▇▇ Place, Englewood, Colorado (the
"Office Lease").
Notwithstanding anything contained in the Office Lease to the
contrary, the parties hereto agree to the following:
1. Lessee agrees to lease from Lessor Suite 215, as shown outlined in
red on Exhibit "F-1", attached hereto and made a part hereof, consisting of
approximately one thousand three hundred forty seven (1,347) rentable square
feet (hereinafter referred to as the "Revised Premises").
Commencing on August 1, 1996 Lessee will vacate the premises
known as Suite 120 and relocate its office to the Revised Premises upon vacation
thereof.
2. The revised rent schedule shall be as follows:
8/1/96 - 7/31/97 $1,347.00 per month $12.00 per square feet
8/1/97 - 7/31/98 $1,403.13 per month $12.50 per square feet
3. Except as specifically set forth herein, all other terms,
conditions, rights and obligations of the Office Lease shall remain in full
force and effect and binding upon the parties.
EXECUTED this 13 day of August , 1996.
______ ________
LESSEE: LESSOR:
CAPITAL RESERVE CORPORATION WESTMINSTER ASSOCIATES, LTD.
a Colorado corporation [information crossed out]
By:/s/▇▇▇▇▇ ▇▇▇▇▇▇ By:/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇
___________________________ _________________________
▇▇▇▇▇ ▇▇▇▇▇▇
Title: President Title: General Partner
__________________________ ________________________