EXHIBIT 10.1a
INDUSTRIAL LEASE
(Gross)
1. PARTIES: This Lease dated, for reference purposes only, April 10, 1998
is made by and between Five K Investments Company (herein called "Lessor") and
Antennas America, Inc. (herein called "Lessee").
2. PREMISES: Lessor hereby 1eases to Lessee and Lessee leases from Lessor
for the term of two (2) years, 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 approximately 7,500 square feet and
described as 4880 ▇▇▇▇ Street, ▇▇▇▇▇ #▇, #▇, and #11, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇.
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 commencing
on May l6, 1998 and ending on May 15, 2000, unless sooner terminated
pursuant to any provision hereof.
3.2. Delay in Commencement: Notwithstanding said commencement date, if
forany reason Lessor cannot deliver possession of the Premises to Lessee on
said date, Lessor shall not be subject to any liability thereof, nor shall
such failure affect the validity of the Lease or 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, 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 $4062.50 in advance; on the 1st day of each month of the term hereof
$2,096,80 as rent for 16 days in May 1998. 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 shall deposit with Lessor upon execution hereof
$4,062.50 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 provision 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 herein above 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 the said Security
Deposit.
6. USE:
6.1 Use: The Premises shall be used and occupied only for office assembly
and warehouse 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
ninety (90) days 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 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
premises, 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 and 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 invites 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,
nor 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 a receipt of written
notice of the need of 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), 7.1 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 wall and interior surface of exterior walls, ceilings, windows,
door, plate glass and skylights located within the Premises and Lease's
signs located in the Premises. 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.
(b) If Lessee fails to perform Lessee's obligation under this
Paragraph 7.2, Lessor at Lessor's option enter upon the Premises after ten
(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 fifteen (15%) percent per annum shall be due and payable, if
not so paid, 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 Alteration and additions:
(a) Lessee shall not, without Lessor's prior written consent, make any
alterations, improvement, addition, or Utility Installation in, or about
the Premises, except for nonstructural alterations not exceeding One
Thousand Dollars ($1,000.00) 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, air conditioning and
plumbing. Lessor may require that Lessee remove any or all of said
alterations, improvements, additions or utillty 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 prior approval of Lessor, Lessor may require
that Lessee remove any or all such. (sic)
(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
shallgive Lessor not less then ten (10) 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 attorney's 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 moved 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).
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 any
liability arising out of the ownership, use, occupancy or maintenance of the
Premises and all areas appurtenant thereto. Such insurance shall be a combined
single limit policy in an amount not less than One Million Dollars
($1,000,000.00). 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 such insurance,
Lessor may, but not be required to, procure and maintain the same but at the
expense of the Lessee. Not more frequently than each five (5) years if, in the
reasonable opinion of Lessor, the amount of liability insurance required
hereunder is not adequate, Lessee shall increase said insurance by more than
fifty percent (50%) greater than the amount thereof during the preceding five
years of the term of this Lease provided however, the failure of Lessor to
require any additional insurance coverage shall not be deemed to relieve 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 of insurance covering loss or damage to the building,
Premises, but not Lessee's fixtures, equipment or tenant improvements in
the amount of the full replacement value thereof, provided protection
against all perils including within the classification of fire, extended
malicious mischief, special extended perils (all risk) but not plate glass
insurance. In addition, the Lessor shall obtain and keep in force during
the tern of this Lease a policy of rental income insurance covering a
period of six (6) months, with loss payable to Lessor which insurance shall
also cover all real estate taxes and insurance cost for said period. In the
event the Premises contains sprinklers, then the insurance coverage shall
include sprinkler leakage insurance.
(b) If the Premises being leased herein are part of a larger property,
then Lessee shall not be responsible for paying any increase in the
property insurance caused by the acts or omission of other tenant of the
building of which the Premises are a part.
8.3 Insurance Polices: 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 polices of liability insurance required under Paragraph 8.1 or
certificates evidencing the existence of such amounts of such insurance with
loss payable clauses satisfactory to Lessor. No such policy shall be cancelable
or subject to reduction of coverage or other modifications 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 therefor 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 waive 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 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 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 defenses of any such claim or any action or proceeding brought
thereon. Lessee upon notice from Lessor shall defend the same at Lessee's
expense by counsel reasonably 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: Unless caused by Lessor's
negligence 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,
customer, 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, water, or rain, or from the breakage, leakage, 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 of 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 provision of Paragraph 9.3 and
9.4 if the Premises are damaged and such damage was caused by a casualty
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.
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 (a) 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 (b) give written notice to Lessee within
thirty (30) days after the date of the occurrence of such damage of Lessor's
intention to cancel and terminate this Lease as of the date of the occurrence of
such damage. 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 (l0) 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 from 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 ten (10)
day period, this Lease shall be canceled and terminated as of the date of the
occurrence of such damage.
9.3 Total Destruction: If at any time hereof the Premises are totally
destroyed from any cause, whether 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, and neither party shall have
further right or obligations hereunder.
9.4 Damage Near End Of Term: If the Premises are partially destroyed or
damaged during the last six (6) months of the term of this Lease, Lessor or
Lessee 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 thirty (30) days after the date of such damage.
9.5 Abatement of Rent: Lessee's Remedies:
(a) If the Premises are partially destroyed or damaged and Lessor and
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
damages 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 ninety (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 therefore 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. PROPERTY TAXES:
10.1 Payment Of Property Taxes: Lessor shall pay all property taxes
applicable to the Premises.
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
of all 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, furnishing, 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 ten (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 service 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.
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, effect 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.
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 of if
Lessee shall request the consent of Lessor for any act Lessee proposes to do,
then Lessee shall pay Lessor reasonable attorneys 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 (3) 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 13.1(b) above, where such failure
shall continue for a period of thirty (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 thirty (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 thirty (30) day period and thereafter
diligently prosecutes such cure to completion.
(d)(i) The making by Lessee of any general arrangements 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 sixty (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
thirty (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 thirty (30) days.
(e) The discovery by Lessor that any financial statement given to
Lessor by Lessee, any assignee of Lessee, any sub-tenant 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 expenses of reletting,
including necessary renovation and alteration of the Premises, reasonable
attorney's fees and any real estate commission actually paid; the worth 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 proves 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 becomes 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 required for performance, then Lessor shall not be in default if
Lessor commences performance within such thirty (30) day period and thereafter
diligently prosecutes the same to completion.
13.4 Late Charges: There will be a late fee assessed for any rent payments
received beyond the 5th of each month of fifteen percent (15%).
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 condemning authority takes title or possession, whichever
first occurs. If more than ten (10%) percent of the floor area of the
improvements of the Premises, or more than twenty five (25%) percent 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 be 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 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 FEES:
Upon execution of this Lease by both parties, Lessor shall pay to N/A a
Licensed real estate broker, a fee as set forth in a separate agreement between
Lessor and said broker. Lessor further agrees that if Lessee exercises any
option granted herein or any option substantially similar thereto, Lessor shall
either to extend the term of this Lease, to renew this lease, to purchase said
Premises or any part thereof and any adjacent property which Lessor may own or
in which Lessor has an interest or any other option granted herein or if said
broker is the procuring cause of any other lease or sale entered into between
the parties pertaining to the Premises and/or any adjacent property in which
Lessor has an interest, then as to any of said transactions Lessor shall pay
said broker a fee in accordance with the schedule of said broker in effect at
the time of execution of this lease. Lessor agrees to pay said fee not only on
behalf of Lessor but also on behalf of any person, corporations, association, or
other entity having an ownership interest in said real property or any part
thereof, when such fee is due hereunder. Any transferee of Lessor's interest in
this Lease, by accepting as assignment of such interest shall be deemed to have
assumed Lessor's obligation under this Paragraph 15. Said broker shall be a
third party beneficiary of the provisions of this Paragraph.
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 statements of Lessee as may be reasonably required by such
lender. Such statements shall include the past three years' financial
statements of Lessee. All such financial statements shall be received by
Lessor in confidence and shall be used only for the purpose 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 any transfer of such title or interest, Lessor herein
named (and in case of any subsequent transfers the then grantor shall be
retrieved 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 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.
l6.3 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.
16.4 Interest On Past Due Obligations: Except as expressly herein provided
in section 13.4, any amount due to Lessor not paid when due shall bear interest
at twelve percent (12%) per annum from the date due. These are for funds due to
Lessor past 1st month 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 stated in this Lease, Lessee
hereby acknowledges that neither the Lessor or any employees or agents 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 be notice to the other specify a
different address for notice purposes except that upon Lessee's taking
possession of the Premises, the Premises shall constitute Lessee's address for
notice purpose copy of all notices required or permitted to be given to Lessor
hereunder shall be concurrently transmitted to such party or parties as such
addresses as Lessor may from time to time hereafter designate by notice to
Lessee. Notices effective upon receipt of refusal of receipt.
16.9 Waivers: No waivers 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 to 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 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 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 equal to treble 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.
16.13 Covenants and Conditions: Each provision of this Lease performable by
Lessee shall be deemed both a covenant and a condition.
l6.14 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 Subordination:
(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 extensions
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 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, and shall give written notice thereof to Lessee, this
Lease shall be deemed prior to such mortgage, deed of trust or ground
lease, whether this Lease is dated prior or subsequent to the date of 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 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 reasonable attorney's
fees to be paid by the losing party as fixed by the court.
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 lender or lessees and making 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.
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 one hundred twenty (120) days
of the term hereof, place on or about the Premises any ordinary "For Lease"
signs, all without rebate of 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 and 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
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 that 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, 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 right are personal to Lessee
and may not be exercised or be assigned, voluntarily or involuntarily by or to
anyone 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 the convenience of other occupants of the building
further, Lessee will promptly pay its pro rata 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 pro rata share of costs, shall be
deemed a material breach of this Lease by Lessee.
16.26 No outside storage of any type is allowed.
16.27 Tenant is responsible for snow removal immediately outside this unit.
16.28 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 of hazardous substances at the Premises except as permitted by the
Lease, to deliver promptly to Landlord true and complete copies of all notices
received by Tenant from any governmental authority with respect to the
generation, storage or disposal by Tenant of hazardous substances, to promptly
notify Landlord of any spills or accidents involving a hazardous substance, and
to permit reasonable entry onto the Premises by Landlord for verification of
Tenant's compliance with this covenant. Tenant 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 disposal of hazardous
substances). This indemnification by Lessee shall survive the termination or
expiration of this lease. "Hazardous substances" shall mean:
(a) "Hazardous substances as defined in the Comprehensive
Environmental Response, Compensation and Liability Act, as amended;
(b) "PCB's" as defined in 40 C.F.R. 761, or analogous regulations
promulgated under the Toxic Substance Control Act, as amended;
(c) "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;
(d) Oil and Petroleum based products;
(e) Radioactive material or waste;
(f) Biological and other medical products and waste material; and,
(g) "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 sixty (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.
16.29 Exterior Maintenance including grounds, parking lot, the building
structure and roof, etc., are to be maintained by and at the expense of the
Lessor.
16.30 Lessee will pay for their own trash removal.
16.31 As it relates to 6.2 (b) as this paragraph relates to a multi-tenant
building, if it becomes necessary Lessor will make determinations as to the work
nuisance and will within a reasonable time present a plan to Lessee as to the
disposition of any issues that may arise. Lessee will not be unreasonable in
their review of the plan.
16.32 Lessee to accept this property in "as is" condition. It is Lessee's
responsibility to be aware of all zoning and permit requirements and to meet
those requirements adequately.
16.33 No pets other than those assisting handicapped persons may reside in
the Premises.
16.34 Option to Renew: Lessor hereby grants Lessee an option to renew the
Lease for one (1) additional period of one (1) year from such time as the lease
term expires. All terms and conditions of the Lease will remain the same during
the one (1) year Lease extension. Lessee must notify Lessor in writing, 180 days
prior to the termination of the Lease that they wish to renew their Lease.
16.35 180 days prior to Lease termination, Lessor or Lessor agents may show
space to other possible Tenants with Lessee present and during normal business
hours.
16.36 First Right Of Refusal on Additional Leased Space in Building: Lessee
will notify Lessor in writing within ten (10) days as to their desire to Lease
additional space after any letter of intent is presented to Lessee regarding any
upcoming vacant space in the building. Additional space term will be for two (2)
years minimum. The rental rate will be based on the market rate for the area.
Lessee to accept this space in "as is" condition.
The. parties hereto have executed this Lease at the place on the dates
specified immediately adjacent to their respective signatures.
This Lease has been filled in and it has been prepared for submission to
your attorney for his approval.
Executed at Five K Investments Company
On April 21, 1998
By: /s/ ▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇ (Property Manager)
Five K Investments Company
Address: 11445 West ▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Lessor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (Vice President)
Antennas America, Inc.
Executed at Antennas America Inc.
On April 21, 1998
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇. ▇▇▇▇▇ #▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Lessee (Corporate Seal)