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EXHIBIT 10.14
LEASE
AGREEMENT
between
LOUP MANAGEMENT COMPANY
LANDLORD
and
JAYCOR
TENANT
DATE December 31, 1994
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LEASE AGREEMENT
THIS LEASE AGREEMENT dated this 31st day of December, 1994, by and between Loup
Management Company, hereinafter referred to as Landlord, and Jaycor, a
California Corporation hereinafter referred to as Tenant.
WITNESSETH:
In consideration of the payment of the rent hereunder provided and the
keeping and performance of each and every one of the covenants, agreements and
conditions of Tenant hereinafter set forth, Landlord does hereby Lease unto the
said Tenant the Demised Premises, defined as follows: that certain space known
as Suite 300, situated on the third floor, of the building known as 25 North
Cascade Office building in the City of Colorado Springs, County of El Paso,
Colorado, and more particularly designated on the floor plan attached hereto as
Schedule A and made a part of this Lease, and hereinafter referred to as the
"Demised Premises", subject to the following terms, provisions, covenants and
agreements.
1. Interior Construction,
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2.
3. Use of Premises. Tenant shall use the Demised Premises as a general
office for a defense contractor and for no other purpose or use. Tenant will not
use the Demised Premises in such a way as to cause unreasonable depreciation.
Tenant shall neither permit nor suffer any disorderly conduct, noise or nuisance
in or about the Demised Premises; Tenant shall not use or permit the Demised
Premises to be used for any business or purpose deemed by Landlord to be extra
hazardous, or in any manner as to constitute a violation of any present or
future laws, rules, regulations, requirements or orders of any lawful
governmental or public authority relating to the Demised Premises; and Tenant
covenants and agrees at its cost to promptly comply with all such laws,
regulations, ordinances and every order or regulation now or hereafter enacted
of the United States, of the City of Colorado Springs, County of El Paso, or
State of Colorado.
4. Base Rent. Tenant agrees to pay without offset or demand Landlord as
base rent ("Base Rent") for the Demised Premises for the full term the sum of
Four Hundred Ninety-Three Thousand Seven Hundred Ninety and no/100 ($493,790.00)
dollars payable in monthly installments of See Lease Addendum ($__________)
dollars in advance on the first day of each calendar month during the term
hereof. Such payments shall be made to Landlord at the address set forth
hereinafter or at such other address as Landlord may designate in writing from
time to time. In the event that Tenant occupies the Demised Premises on a date
other than the first day of the month, then the Base Rent for the first and last
months of the term hereof shall be prorated.
5. Term Commencement. The term of this Lease shall be for five (5)
years, and such term shall commence on the earlier of the happening of the
following events:
(a) the date on which Tenant first utilizes the Demised Premises to
conduct business in all or a portion of the Demised Premises, or
(b) ____ (____) days after the execution of this Lease by Landlord
and Tenant, and shall terminate five (5) years following the commencement of the
term as hereinabove set forth.
If the date of commencement (as provided in (a) or (b) hereof)
is on a day other than the first day of the month, rent shall be immediately
paid for such fractional month prorated on the basis of a thirty (30) day month
and the term of the Lease shall commence on the first day of the month next
succeeding, which date shall be the commencement date of this Lease.
Landlord and Tenant shall execute a written addendum to this
Lease when the commencement date is determined as above set forth, which shall
set forth the commencement date of the Lease and the date of termination of the
Lease.
6. Operating Costs.
6.1. Tenant shall pay to Landlord as additional rental, commencing
on the date the first monthly installment of Base Rent is due, any amount equal
to Tenant's Proportionate Share of the total "Operating Costs" as said term is
hereinafter defined, payable by Landlord in operating and maintaining the
Building.
6.2. The term "Operating Costs" means the total amounts paid or
payable by Landlord, or others on behalf of Landlord, in connection with the
ownership, replacement, maintenance, repair, and operations of the Building
(except for those items of repair and maintenance set forth in paragraph 10
hereof which shall be the sole obligation of Tenant), including without limiting
the generality of the foregoing, the amount paid for all steam or fuel used in
heating and air conditioning of the Building, the amount paid for all
electricity furnished to the Building, other than electricity furnished to and
paid for by Tenants by reason of their extraordinary consumption of electricity;
the amount paid for all hot and cold water other than that chargeable to
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Tenants by reason of their extraordinary consumption of water; the amount paid
for all labor and/or wages and other payments including cost to Landlord of
workmen's compensation and disability insurance, payroll taxes, real estate
taxes and assessments, personal property taxes, welfare and fringe benefits made
to janitors employees, contractors and subcontractors of the Landlord involved
in the operation, replacement and maintenance of the Building; managerial,
administrative, and telephone expenses related to the Building; the total
charges of any independent contractors employed in the care, and operation,
replacement, and maintenance and cleaning of the Building and landscaping; the
amount paid for all supplies, tools, equipment and necessities which are
occasioned by everyday wear and tear, the cost of window and exterior wall
cleaning; the cost of accounting services necessary to compute the rents and
charges payable by Tenants, legal, inspection and consulting services; the cost
of operating, repairing and maintaining the building elevators, the cost of
guards and other protection services; payments for general maintenance,
replacement and repairs to the plant and equipment supplying climate control;
and the amount paid for premiums for all insurance required from time to time by
Landlord or Landlord's mortgagees. The reference to "Building" in this
subparagraph 6.2 shall include all related facilities, including corridors,
lobbies, sidewalks, parking areas, elevators, loading areas and driveways and
other public areas in or around the Building.
6.3. Tenant's proportional share of such Operating Costs shall be
an amount determined by multiplying the annual total of the Operating Costs by a
fraction, the numerator of which shall be Twenty and 37/100 percent, (20.37%) ,
the square footage of the Demised Premises leased to Tenant hereunder and the
denominator of which shall be the total gross leaseable square feet in the
Building, which is 54,000 expressed as a percentage equal.
6.4. Payment of Additional Rent: Any additional rent payable by
Tenant under section 6.1, 6.2 and 6.3 hereof shall be paid as follows, unless
otherwise provided:
(a) During the term hereof, Tenant shall pay to Landlord in
advance, on the date monthly installments of Base Rent are due hereunder,
one-twelfth (1/12th) of the amount of such additional rentals as reasonably
estimated by Landlord to be due from Tenant. Such estimate may be adjusted by
Landlord, and Tenant shall pay installments of additional rentals according to
such estimate.
(b) If the amount of such estimated additional rental payment
made by the Tenant in any year should be less than the additional rentals due
for such year, then the Tenant shall pay to the Landlord an additional rental
upon demand the amount of such deficiency.
(c) If the amount of such additional rental payments made by
the Tenant in any year are greater than the additional rentals due for such
year, providing Tenant is not in default hereunder, such excess will be applied
by the Landlord to the next succeeding installments of additional rentals due
hereunder; and if there is any excess for the last year of the term hereof, the
amount thereof will be refunded by the Landlord to the Tenant within thirty (30)
days after the expiration of the term.
7. Taxes.
7.1. The term "Taxes as used in this Lease in paragraph 6 hereof
shall mean the amount of real estate taxes and special assessments imposed upon
land, buildings and improvements in, of and upon the building, and levies and
assessments made upon or as a result of personal property owned by Landlord and
used in connection with the Building. If because of any changes in the taxation
of real estate any other tax or assessment (including, without limitation, any
occupancy, gross receipts, or rental tax) is imposed upon Landlord or the owner
of the land and/or building or the occupancy, rents or income therefrom, in lieu
of, or in substitution for, or in addition to, any of the foregoing taxes, such
other tax or assessment shall be deemed part of the Taxes.
7.2. Commencing with the tax xxxx for the Lease Year in which the
Tenant's tenancy begins, Tenant agrees to pay Landlord each year Tenant's share
of such real estate taxes and special assessments as may be levied on the
building and determined and pursuant to paragraph 6 hereof. In the event that
the term hereby demised does not commence on the 1st day of January, then the
Tenant's share of the taxes for the year the term commences and terminates shall
be apportioned on a per diem basis in such proportion as Tenant's tenancy of the
Demised Premises bears to 365 days.
7.3. In order to facilitate the collection of taxes called for
hereunder, Tenant shall deposit with Landlord on the day monthly installments of
rent are due on amount equal to one-twelfth (1/12th) of the taxes and levies due
from Tenant to Landlord hereunder during each month of the term hereby demised
or any extension thereof. Tenant's share of taxes, levies and assessments shall
be based upon estimates made by Landlord of projected taxes due for the subject
Lease Year, all as set forth in paragraph 6 hereof.
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8. Insurance.
8.1. In addition to Tenant's obligation to pay its proportionate
share of cost insurance pursuant to paragraph 6 hereof, Tenant shall pay all
premiums due in connection with the insurance Tenant is required to carry under
the terms of this Lease and shall furnish Landlord with copies of paid receipts
evidencing the payment thereof. All such policies shall be written with
companies satisfactory to Landlord and authorized to do business in the State of
Colorado. Landlord shall not unreasonably withhold consent to the placement of
insurance with companies proposed by Tenant.
8.2. Tenant during the entire term of this Lease shall keep the
Demised Premises insured for the protection of Landlord and Landlord's designees
who shall be so named as co-insureds in any such policies, by maintaining
general public liability and property insurance against claims for bodily
injuries or death and property damage occurring upon or under the Demised
Premises or resulting from the business done by Tenant on the Demised Premises,
and shall include a cross liability clause with respect to the Demised Premises
and Tenant's use of any part of the Building. Such insurance shall be written on
a comprehensive basis with limits of not less than two million ($2,000,000.00)
dollars for any one occurrence and such higher limits as the Landlord or the
mortgagees of Landlord may reasonably require from time to time.
8.3. Tenant shall maintain standard fire and extended coverage
insurance insuring all alterations and additions made to the Demised Premises
and all of the fixtures, furniture and equipment for the full replacement
thereof. Such insurance shall be maintained by and shall be paid for by Tenant.
8.4. Tenant shall maintain, at its sole cost and expense, any other
form or forms of insurance as Landlord or the mortgagees of Landlord may
reasonably require from time to time in form, in amounts and for insurance risks
against which a prudent Tenant would protect itself, and shall deliver to
Landlord certificates of all insurance required by Landlord hereunder upon
demand of Landlord.
8.5. All policies of insurance required pursuant to this paragraph
8 shall designate Landlord hereunder and Tenant as named insureds and shall
provide that the proceeds of such insurance shall be payable to Landlord and
Tenant, as their interests may appear. If required by Landlord, such policies
shall contain a loss payable endorsement in favor of the holder of any mortgage
or deed of trust on the building or any portion thereof.
8.6. All policies of insurance required hereunder shall
additionally provide that the same may not be cancelled without at least thirty
(30) days prior written notice to Landlord, and shall provide further that any
losses shall be payable notwithstanding any act of negligence of Tenant which
might otherwise result in forfeiture of said insurance.
8.7. If Tenant shall at any time fail, neglect or refuse to provide
and maintain such insurance, then Landlord shall have the option (but shall not
be required to) pay for such insurance and any amounts paid therefore by
Landlord shall be deemed additional rent due Landlord and shall be paid by
Tenant to Landlord at the next rental payment date after any such payment, with
interest thereon at the rate of eighteen (18%) percent per annum from the date
of payment thereof.
9. Use of Electricity.
9.1. Tenant's use of electricity in the Demised Premises shall be
for the operation of building standard lighting, electrical fixtures, typewriter
and other small office machines and lamps and shall not at any time exceed the
capacity of any of the electrical conductors and equipment in or otherwise
serving the Demised Premises.
9.2. In order to ensure that such capacity is not exceeded and to
avert possible adverse effect upon the Building's electrical service, Tenant
shall not, without Landlord's prior written consent in each instance, which
consent shall not unreasonably be withheld, connect any additional fixtures,
appliances or equipment (other than normal office electrical fixtures and
copying machinery, lamps, typewriters and similar small office machines) to the
Building's electric distribution system or make any alteration or addition to
the electrical system of the Demised Premises existing at the commencement of
the term hereof. If Landlord grants such consent, the cost of all additional
risers and other equipment required therefore shall be paid as additional rent
by Tenant to Landlord upon demand. Furthermore, Tenant shall pay on demand as
additional rent to Landlord the cost of any electric current or other energy for
any other purpose, including, without limitation, the operation of heavy duty
accounting equipment and copy equipment, and computer equipment.
9.3. Tenant shall pay as additional rental, on demand, the cost of
any metering which may be required by Landlord to measure any excess usage of
electricity, water or other utility energy.
10. Tenant Repair
10.1. If any of the elevators, and other apparatus, or elements of
the Building used for the purpose of climate control or operating the elevators,
or if the water pipes, drainage pipes,
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electric lighting or the roof or outside walls of the Building or parking
facilities of Landlord becomes damaged or are destroyed through the negligence,
carelessness or misuse of the Tenant, its agents, employees or anyone permitted
by Tenant to be in the building, then the cost of the necessary repairs,
replacements or alterations shall be borne by Tenant who shall pay the same on
demand to Landlord as additional rental.
10.2. Tenant shall keep the Demised Premises in as good order,
condition and repair as when they were entered upon, loss by fire (unless cause
by the negligence of Tenant, its agents, employees or invitees), inevitable
accident or ordinary wear and tear excepted. If Tenant fails to keep the Demised
Premises in such good order, condition and repair as required hereunder to the
reasonable satisfaction of Landlord, as soon as reasonably possible after
written demand, Landlord may restore the Demised Premises to such good order and
condition and make such repairs without liability to Landlord and upon
completion thereof, Tenant shall pay to Landlord, as additional rental, upon
demand, the cost of restoring the Demised Premises to such good order and
condition and of the making of such repairs.
10.3. Tenant shall pay on demand the cost of replacement of any
glass broken on the Demised Premises including outside windows and doors of the
perimeter of the Demised Premises during the continuance of this Lease, unless
the glass shall be broken by Landlord, its employees or agents.
10.4. Tenant shall deliver, at the expiration of the Term hereof or
sooner upon termination of the Term, the Demised Premises in good repair and in
a state of broom cleanliness.
10.5. Any and all other maintenance, repair, alteration or
replacement (including, but not limited to, the exclusive right to make any
replacement of electric light bulbs, tubes and ballasts in the Demised Premises)
of any of the improvements or facilities of the Demised Premises shall be done
by Landlord, at Lessee's sole cost and expense, which shall be paid to Landlord
by Tenant as additional rent upon Landlord's written demand.
11. Alterations.
*11.1. Subsequent to the execution of this Lease and prior to the
commencement hereof, Tenant shall have the right to come upon, enter and have
access to the Demised Premises to place and attach, at its expense, to the
Demised Premises any fixtures, furnishings, equipment or facilities reasonably
required by it for its business, including, but not limited to, shelving,
partitions, fixtures, floor and wall coverings, lighting fixtures, and other
equipment and facilities desirable for its business, provided such work does not
cause irreparable injury or damage to the Demised Premises.
11.2. Other than as provided in paragraph 11.1, Tenant shall make
no alterations, changes, additions or improvements to the Demised Premises
without the Landlord's prior written consent. No such alteration, change,
addition or improvement shall be done so as to lessen or materially and
disadvantageously affect the value of the Demised Premises.
11.3. Landlord shall not under any circumstances whatsoever be
liable for the payment of any expense incurred or the value of any work done or
material furnished to the Demised Premises by virtue of any construction,
alteration, change, additions or improvement undertaken by Tenant. All such work
shall be Tenant's sole cost and expense and Tenant shall be wholly responsible
to all contractors, subcontractors, laborer and materialmen therefor. Tenant
shall pay for all or any of the foregoing so that no lien shall be asserted
against the Demised Premises or the Building.
11.4. Tenant shall indemnify and save Landlord harmless for any
liabilities, damages or penalties, and any costs, expense or claims of any kind
or nature arising out of said construction, alteration, or additions, or
otherwise, and such indemnifications shall apply to any damages or injury to
person or property resulting therefrom.
11.5. Except as provided in paragraph 13 hereof, all alterations
made, done and constructed in, upon or around the Demised Premises by Tenant
shall become the property of Landlord at the termination of this Lease, and
shall remain the Demised Premises and be surrendered with the Demised Premises.
12. Lien Protection. Tenant agrees that at no time during the term of
this Lease will Tenant permit a lien or encumbrance of any kind or nature to
come into existence against the Demised Premises or the Building. If at any time
a lien or encumbrance of any kind or nature to come into existence against the
Demised Premises or the Building. If at any time a lien or encumbrance is filed
against the Demised Premises or the Building as a result of Tenant's failure to
satisfy same, Tenant shall promptly discharge said lien or encumbrance has not
been removed within thirty (30) days from
* See Lease Amendment
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the date it is filed or recorded against the Demised Premises, Tenant agrees it
will deposit with Landlord in cash an amount equal to one hundred and fifty
(150%) percent of the amount of the lien of the person or concern filing the
lien and shall leave the same on deposit with Landlord until said lien is
discharged, Landlord shall have the option, but not the responsibility, to
satisfy any such lien or encumbrance, and if Landlord pays any such lien or
encumbrance, Tenant shall pay to Landlord as additional rent, the amount of such
payment on the next following day when monthly installments of rent are due
hereunder. If Landlord satisfies any such lien or encumbrance, it may make such
payment without inquiry to the accuracy of the amount of such lien or
encumbrance of the validity of the lien or encumbrance.
13. Trade and Other Fixtures.
13.1. Any and all alterations, changes, additions or improvements
to the Demised Premises which are not movable including, but not limiting the
generality of the foregoing, any and all fixtures, trade fixtures, equipment,
machinery, lighting fixtures, cooling equipment, built-ins, partitions, wall
coverings, tile linoleum and power wiring shall be the property of the Landlord
upon any termination of the Lease.
13.2. Any movable trade fixtures, equipment, machinery or other
personal property of Tenant used in or on the Demised Premises shall be the
property of the Tenant upon any termination of this Lease, and Tenant shall have
ten (10) days from and after the date to remove the same from the Demised
Premises, provided Tenant is current in all of its obligations hereunder. If not
so removed, any such fixtures and equipment shall be deemed abandoned and shall
be the property of Landlord. Any damage caused to the Demised Premises by the
removal of such items shall be repaired by Tenant at Tenant's expense.
14. Signs. Tenant shall not install any signs, window lettering or other
advertisement in, upon or around the Demised Premises without the prior written
approval of Landlord, Landlord shall have absolute discretion in approving or
disapproving any proposed sign.
15. Tenant's Covenants. Tenant, in consideration of the leasing of the
Demised Premises, as aforesaid, and in addition to any and all covenants
hereinabove and hereinafter included in this Lease, covenants and agrees as
follows, to wit:
15.1. To pay the rent for said Demised Premises, all additional
rent and any and all other charges provided hereunder promptly when due and
payable. It is understood and agreed that Landlord may assess a late charge
which shall be in the amount of three (3%) percent of any monthly rent
installment or other payment called for hereunder, which is delinquent ten (10)
days or more.
15.2. To pay any increase in premiums of insurance carried by
Landlord pursuant to paragraph 6 hereof, if, in the reasonable determination of
Landlord, such increase is directly related or caused by Tenant's use of the
Demised Premises.
15.3. Neither to permit nor suffer any noise or disturbances
whatever, other than those incident to Tenant's regular business.
15.4. Neither to hold nor attempt to hold Landlord liable for any
damage or injury, either proximate or remote, occurring through or caused by any
repairs, alterations, injury, or accident to adjacent premises, or the Demised
Premises or the adjacent premises or other parts of the building not herein
leased, or by reason of the negligence or default of the owners or occupants
thereof or any other persons, nor liable for any injury or damage occasioned by
defective electric wiring or the breaking or stoppage of plumbing or sewage upon
the Demised Premises or upon adjacent premises, whether said breaking or
stoppage results from freezing or otherwise; provided, however, such occurrences
are not cause by Landlord's negligence.
15.5. Neither to permit nor suffer the Demised Premises or the
walls or floors thereof, to be endangered by overloading.
15.6. Not to use the Demised Premises for any purpose which would
render the insurance thereon void or the insurance risk more hazardous, nor to
make any alterations or changes in, upon, or about the Demised Premises without
first obtaining written consent from the Landlord therefor.
15.7. To permit Landlord, or its agents to enter upon the Demised
Premises at any time for the purpose of inspection and making repairs,
alterations or improvements to the Demised Premises or to the Building, or for
the purpose of having access to the under floor ducts, or to have access to
mechanical shafts (which Tenant agrees not to obstruct), and Tenant shall not be
entitled to compensation for any inconvenience, nuisance or discomfort
occasioned thereby. Landlord shall have the right to enter the Demised Premises
in order to check, calibrate, adjust and balance controls and other parts of
heating, ventilating and climate. To permit Landlord or its agents to enter upon
the Demised Premises to exhibit and show the Demised Premises to prospective
tenants of the Building or to prospective purchasers of the building during
normal business hours.
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15.8. To surrender and deliver up possession of the Demised
Premises and any appurtenance thereto promptly upon the expiration of the Lease.
15.9. To comply with all of the rules and regulations promulgated
and adopted by Landlord regarding the building.
16. Casualty Damage.
16.1. In the event of fire or other casualty, for which Landlord
has received insurance proceeds, and which is not caused by the negligence of
Tenant, Base Rent shall xxxxx in the proportion that the unusable portion of the
Demised Premises as reasonably determined by Landlord is of the total area of
the Demised Premises until the Demised Premises are rebuilt: and Landlord agrees
that it will with reasonable diligence repair the Demised Premises, unless
Tenant is obligated to repair under the terms hereof, or unless this Lease is
terminated as hereinafter provided; subject to the provisions of paragraphs 16.2
and 16.3.
16.2. If the Demised Premises are damaged or destroyed by any cause
whatsoever, and if, in the reasonable opinion of Landlord, the Demised Premises
cannot be rebuilt or made fit for the purposes of Tenant within one hundred
twenty (120) days of the damage or destruction, Landlord instead of rebuilding
or making the Demised Premises fit for Tenant, may at its option terminate this
Lease by giving to Tenant within sixty (60) days after such damage or
destruction, notice of termination, and thereupon rent and any other payments
for which Tenant is liable under this Lease shall be apportioned and paid to the
date of such damage and Tenant shall immediately deliver up possession of the
Demised Premises to Landlord. Provided, however, that those provisions of this
Lease which are designated to cover matters of termination and thereafter shall
survive the termination hereof.
16.3. Irrespective of whatever the Demised Premises are damaged or
destroyed, in the event that fifty (50%) percent or more of the area in the
Building is damaged or destroyed by any cause whatsoever, and if, in the
reasonable opinion of Landlord, the said area cannot be rebuilt or made fit for
the purpose of the tenants of such space within one hundred and eighty (180)
days after the damage or destruction, the Landlord may at its option terminate
this Lease by giving to Tenant within sixty (60) days after such damage notice
of termination requiring it to vacate the Demised Premises sixty (60) days after
delivery of the notice of termination and thereupon rent and any other payment
shall be apportioned and paid to the date of which possession is relinquished
and Tenant shall deliver up possession of the Demised Premises to Landlord in
accordance with such notice of termination.
16.4. Landlord shall in no event be obligated to repair or replace
any damage or destruction in the building for which Landlord has not receive
insurance proceeds. In the event of any damage or destruction for which Landlord
does not receive insurance proceeds, Landlord may, at its option, elect not to
rebuild, repair or replace said damage or destruction and will thereafter have
the option to terminate this Lease by giving Tenant written notice.
17. Indemnification. Tenant shall indemnify, protect, defend, and hold
Landlord harmless from and against any and all claims, losses, costs (including
without limitation, attorneys' fees) or damages and from liability to any person
on account of any damage to person or property to the extent caused by the
negligence or willful misconduct of Tenant, its employees, directors, officers
or agents, or the failure of Tenant to perform its obligations under this Lease.
Landlord shall indemnify, protect, defend and hold Tenant harmless from and
against any and all claims, losses, costs (including without limitation
attorneys' fees) or damages and from liability to any person on account of any
damage to person or property to the extent caused by the negligence or willful
misconduct of Landlord, its employees, directors, officers or agents or the
failure of Landlord to perform its obligations under this Lease.
18. Eminent Domain.
18.1. If the Demised Premises or a substantial part thereof, shall
be taken in eminent domain, or conveyed under threat or condemnation
proceedings, then this Lease shall forthwith terminate and end upon the taking
thereof as if the original term provided in said Lease expired at the time of
such taking. If only such part or portion of the Demised Premises is taken which
would not substantially and materially interfere with or adversely affect the
business of the Tenant conducted at the Demised Premises, then Landlord, at
Landlord's option to be exercised in writing within thirty (30) days after the
taking thereof, may repair, rebuild or restore the Demised Premises, and this
Lease shall continue in effect. If, however, because of such taking, the Demised
Premises should be rendered untenantable or partially untenantable, then the
rent, or a portion thereof, shall xxxxx until the Demised Premises shall have
been restored.
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18.2. In the event that an award is made for the taking of such
property and parcels of the Demised Premises or the Building in condemnation
proceedings, Landlord shall be entitled to receive and retain the amounts
awarded or paid for such taking or conveyance; provided, however, that Tenant
shall be entitled to receive and retain such amounts as are specifically awarded
to it in such proceeding because of the taking of its furniture, or fixtures,
and its leasehold improvements which have not become a part of the realty. It is
understood and agreed that any amounts specially awarded in any such taking for
the damage to the business of Tenant done on the Demised Premises and awarded to
it as a result of interference with the access to the Demised Premises or for
any other damage to said business and trade done at the Demised Premises shall
be the property of Tenant.
18.3. It is understood and agreed that in the event of the
termination of this Lease as provided under this paragraph, Tenant shall have no
claim against Landlord for the value of any unexpired term of this Lease and no
right or claim to any part of the award made on account thereof.
19. Default and Remedies of Landlord.
19.1. If any one or more of the following events (each of which is
herein sometimes called "event of default") shall happen:
19.1.1. If the default shall be made in the due and punctual
payment of any rent, taxes or any other sums required to be paid by Tenant under
this Lease when and as the same shall become due and payable, and such default
has not been cured within ten (10) days of the date of same becomes due and
payable.
19.1.2. If Tenant shall vacate or abandon the Demised Premises or
if default shall be made by Tenant in the performance of or compliance with any
of the covenants, agreements, terms or conditions contained in this Lease other
than those referred to in the foregoing paragraph 19.1.1, and Tenant shall fail
to remedy the same with in thirty (30) days after Landlord shall have given
Tenant written notice specifying such default.
19.1.3. If Tenant shall file a voluntary petition in bankruptcy or
shall be adjudicated as bankrupt or insolvent, or shall take the benefit of any
relevant legislation that may be in force for bankrupt or insolvent debtors or
shall file any petition or answer seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief for itself
under any present or future federal, state or other statute, law or regulation,
or if any proceedings shall be taken by Tenant under any relevant bankruptcy act
in force in any jurisdiction available to Tenant, or if Tenant shall seek or
consent to or acquiesce in the appointment of any trustee, receiver or
liquidator of Tenant or of all or any substantial part of its properties or of
the Demised Premises, or shall make any general assignment for the benefit of
creditors.
19.1.4. If a petition shall be filed against Tenant seeking any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under any present or future federal, state or other statute,
law or regulation and shall remain undismissed for an aggregate of one hundred
twenty (120) days or if trustee, receiver or liquidator of Tenant or of all or
any substantial part of its properties or of the Demised Premises shall be
appointed without the consent or acquiescence of Tenant and such appointment
shall remain unvacated for an aggregate of one hundred twenty (120) days.
19.2. Then and in any event covered by paragraphs 19.1.1., 19.1.2.,
19.1.3., 19.1.4, Landlord shall have the right at its election, provided
Landlord has given prior written notice, as hereinabove set forth, to Tenant,
then or any time thereafter, either to:
19.2.1. Institute suit against Tenant to collect each installment
of rent or other sum as it becomes due or to enforce any obligations under this
Lease; or
19.2.2. Re-enter and take possession of the Demised Premises and
all personal property therein and to remove Tenant and Tenant's agents and
employees therefrom, and either:
19.2.2.1. Terminate this Lease and xxx Tenant for damages for
breach of the obligations of Tenant to Landlord under this Lease, and such
damages shall be deemed to be the equipment of the amount of the net rent and
other rent and charges which would be payable under this Lease by Tenant if this
Lease were still in effect, less the net proceeds of any reletting effect
pursuant to paragraph 19.2.2.2., or
19.2.2.2. Without terminating this Lease, relet, assign or sublet
the Demised Premises and personal property, as the agent and for the account of
Tenant in the name of Landlord or otherwise, upon the best terms and conditions
Landlord may make with the new Tenant for such term or terms (which may be
greater or less than the period which would otherwise have constituted the
balance of the term of this Lease) and on such conditions as Landlord may deem
best; may determine and may collect and receive the rent therefor, provided
Landlord shall in no way be responsible or liable for any failure to relet the
Demised Premises or any part thereof, or for any failure to collect any rent due
upon any such reletting. In this event, the rents received on any such
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reletting shall be applied first to the expenses of reletting and collecting,
including, without limitation, all repossession costs, reasonable attorney's
fees, legal fees and any real estate commission paid, alteration costs and
expenses of preparing the Demised Premises for reletting, and thereafter toward
payment of the rental and of any other amounts payable by Tenant to Landlord. If
the sum realized shall not be sufficient to pay such rent and other charges
within five (5) days after demand, Tenant will pay to Landlord any such
deficiency as it accrues. Landlord may xxx therefore as each deficiency shall
arise if Tenant shall fail to pay such deficiency within the time limited.
In the event Landlord elects to re-enter or take possession of the
Demised Premises, Tenant shall quit and peaceably surrender the Demised Premises
to Landlord, and Landlord may enter upon and re-enter the Demised Premises and
possess and repossess themselves thereof, by force, summary proceedings,
ejectment or otherwise, and any dispossess and remove Tenant and may have, hold
and enjoy the Demised Premises and the right to receive all rental income of and
from the same.
19.3. No such re-entry or taking possession by Landlord shall be
construed as an election on Landlord's part to terminate or surrender this Lease
unless a written notice of such intention is served on Tenant, notwithstanding
the service of a Demand For the Payment Of Rent Or Possession, and Landlord and
Tenant expressly agree that the service or posting of such Demand will not
constitute an election on the part of Landlord to terminate this Lease.
19.4. The enumeration of the foregoing remedies does not exclude any
other remedy, but all remedies are cumulatives and shall be in addition to every
other remedy now or hereafter existing at law or in equity.
19.5. In the event of any breach by Tenant of any of the agreements,
terms, conditions or covenants contained in this Lease, Landlord, in addition to
any and all other rights herein provided and at Landlord's option, shall be
entitled to enjoin such breach and shall have the right to invoke any right and
remedy allowed at law or in equity or by statute or otherwise for such breach as
through re-entry, summary proceedings, and other remedies not provided for in
this Lease.
19.6. All rent in arrears and all amounts collectable hereunder shall
bear interest at the rate of eighteen (18%) percent per annum from the
respective due dates until paid, provided that this shall in no way limit,
lessen or affect any claim for damages by Landlord for any breach or default by
Tenant.
20. Holding Over.
20.1. If Tenant remains in possession of the Demised Premises
after expiration of the term hereby demised, such holding over shall be deemed
to be holding over upon a tenancy from month to month at a monthly rental equal
to one hundred fifty (150%) percent of the monthly installment of Base Rent due
under the terms of this Lease for the month next preceding the commencement of
the hold over period, and Tenant shall remain liable for all other payments
provided for hereunder, and such holding over shall be subject to all of the
other terms and conditions of this Lease.
20.2. In the event Landlord relets the Demised Premises to a new
Tenant and the term of such new Lease commences during the period of which
Tenant holds over, then such holding over shall be deemed a breach of Tenant's
covenant to deliver up the Demised Premises upon the termination or expiration
of the term of this Lease, and Landlord shall be entitled to recover from Tenant
any and all costs, expenses, reasonable attorney's fees, damages, loss of
profits or any other costs resulting from Tenant's failure to deliver possession
of the Demised Premises to the new tenant.
21. Subordination, Estoppel Letter and Attornment. This Lease is
subject to subordinate to all mortgages and deeds of trust which now or
hereafter may affect the Demised Premises or the Building, and Tenant shall
execute and deliver upon demand of Landlord any and all instruments
subordinating this Lease, in the manner requested by Landlord, to any new or
existing mortgage or deed of trust. Further, Tenant shall at any time and from
time to time, upon not less than ten (10) days prior written notice from
Landlord, execute, acknowledge and deliver to Landlord 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 rent and
other charges are paid in advance, if any, and acknowledge that there are not,
to Tenant's knowledge, any uncured defaults on the part of the Landlord
hereunder, or specifying such defaults, if any are claimed, and such other
matters as Landlord's mortgagee may require.
In the event that Landlord or its principal sells, conveys, transfers
or grants the Building or the Demised Premises to any person, firm, corporation,
company or entity, during the term hereby demised, Tenant agrees to attorn to
such new owner, and Landlord and its principal shall be released
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from performance hereunder.
22. Landlord's Title. It is understood that Landlord is the agent of the
owners of the Demised Premises, and as such has full and complete authority to
enter this Lease.
23. Quiet Enjoyment. Tenant, upon paying the rent, and performing the
covenants and agreements of this Lease, shall quietly have, hold and enjoy
possession of the Demised Premises and all rights granted Tenant in this Lease
during their term hereof.
24. Assignment and Subletting.
24.1. Tenant may not sublet the Demised Premises or any part
thereof and may not assign any of its right or interest in this Lease without
the express written consent of the Landlord, which consent shall not be
unreasonably withheld. Upon any assignment or subletting hereof even though
consented to by the Landlord, the Tenant shall remain liable for the payment of
the rent provide for herein and for the performance of the agreements, terms,
conditions and covenants of this Lease undertaken to be kept and performed by
the Tenant and the assignee of this Lease, where permitted, shall assume and
undertake to keep, observe and perform all the agreements, terms, conditions and
covenants of this Lease. For the purposes of this provision, transfer of
controlling interest in Tenant by the present holders thereof shall be deemed to
be an assignment hereunder. In no event shall Landlord's refusal to approve an
assignment or subletting deemed unreasonable, if the use of the Demised Premises
by the assignee or subtenant violates any law or statute of the United States,
the State of Colorado, the City of Colorado Springs, and the County of El Paso,
or if such use is extra hazardous, increases the insurance carried by Landlord
on the Building or is deemed by Landlord to be incompatible with the use of
other tenants of the building.
24.2. Any such assignment of subletting by Tenant without the
written consent of Landlord being first obtained, shall be voidable at the
option of Landlord, who may, upon such breach, immediately re-enter and take
possession of the entire Demised Premises, or any part thereof, without giving
any notice. Any such unauthorized assignment or subletting by Tenant shall cause
this Lease, at landlord's option, to terminate. In case of any assignment,
attempted assignment, subletting or attempted subletting by Tenant without
Landlord's written consent thereto, Landlord may without notice, prevent the
ingress of persons claiming under such unauthorized assignment or sublease.
24.3. Notwithstanding anything to the contrary herein contained,
Tenant agrees that Landlord may attach as a condition to Landlord's written
approval of any assignment or sublease by Tenant that Landlord shall be entitled
to the receipt of any profit derived by Tenant as a result of such assignment
and/or sublease. Such profit shall include any amounts received by Tenant from
its assignee or subtenant in excess of the rent required to be paid by Tenant
hereunder. Tenant shall deliver all documents relating to any such assignment
and subletting to Landlord upon Landlord's demand.
24.4. Notwithstanding anything contained in the paragraph 24 or
elsewhere contained in this Lease, Tenant shall have no claim, and hereby waives
the right to any claim, against Landlord for money damages by reason of any
refusal, withholding or delaying by Landlord of any consent or approval, and in
such event, Tenant's only remedies therefore shall be an action for specific
performance or injunction to enforce any such requirement. If any such action
shall be adverse to Landlord, Landlord shall be liable to Tenant for Tenant's
court costs and reasonable attorney's fees thereby incurred.
25. Waiver. No waiver of any breach of any one of the agreements,
terms, conditions or covenants of the within Lease by Landlord or Tenant shall
be deemed to imply or constitute a waiver of any other agreement, term,
condition or covenant of this Lease. The failure of either party to insist on
strict performance of any agreement, term, condition or covenant, herein set
forth, shall not constitute or be construed as a waiver of the rights of either
or of the other thereafter to enforce any other default of such agreement, term,
condition or covenant; neither shall such failure to insist upon strict
performance be deemed sufficient grounds to enable either party hereto to forego
or subvert or otherwise disregard any other agreement, term, condition or
covenant of this Lease.
26. Notices. Any notices required or permitted hereunder or which
any party elects to give shall be in writing and deliver either personally to
the other party or the other party's authorized agent set forth below (or as
changed by written notice), or by depositing such notice in the United States
Certified Mail, Return Receipt Requested, postage fully prepaid, to the person
at the address set forth below, or to such other address as either party may
later designate in writing:
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Landlord: LOUP MANAGEMENT COMPANY
00 Xxxxxxxxx Xxxxx Xxxx Xxxxxxxx #X
Xxxxxxxxx, XX 00000
Tenant: JAYCOR
c/o 0000 Xxxx Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Any notice given by mail as herein provided shall be deemed given when deposited
in the United States mail.
27. Successors. All of the agreements, terms, conditions and covenants
set forth in this Lease shall inure to the benefit of and be binding upon the
heirs, legal representatives, successors, executors and assigns of the parties,
except that no assignment or subletting by Tenant in violation of the provisions
of this Lease shall vest any rights in the assignee or in the subtenant.
28. Entire agreement. The within Lease constitutes the entire agreement
of the parties hereto. No representations, promises, terms, conditions,
obligations or warranties whatsoever referring to the subject matters hereof,
other than those expressly set forth herein, shall be of any binding legal force
or effect whatsoever. No modification, change or alteration of this Lease shall
be of any legal force or effect whatsoever unless in writing, signed by all
parties hereto.
29. Landlord's Right to Cure Tenant's Default. If Tenant shall default in
the performance of any covenant or provision of this Lease to be performed on
Tenant's part, Landlord may, after fifteen (15) days notice to Tenant, or
without notice if in Landlord's opinion an emergency exists, perform the same
for the account and at the expense of Tenant. If Landlord shall incur any
expense, including reasonable attorneys' fees, in instituting, prosecuting, or
defending any action of Tenant, Tenant shall reimburse Landlord for the amount
of such expense with interest at the rate of eighteen (18%) percent per annum
from the date of Landlord's advance or advances therefor. Should Tenant,
pursuant to this Lease, become obligated to reimburse or otherwise pay Landlord
one or more sums of money pursuant to this paragraph 29, the amount thereof
shall be paid by Tenant to Landlord within two (2) days of Landlord's written
demand therefor, and if Tenant fails to make such payment, such failure shall be
deemed an event of default as set forth in paragraph 19 hereof. The provisions
hereof shall survive the termination of this Lease. The provision hereof shall
neither impose a duty on Landlord nor excuse any failure on Tenant's part to
perform or observe and covenant or condition in this Lease contained on Tenant's
part to be performed or observed.
30. Enforcement of Lease - Attorneys' Fees. In the event that either
Landlord or Tenant commences an action for the enforcement of or arising out of
breach of the terms of this Lease, then the party who is awarded judgement in
such action, shall be awarded, in addition to any other award made therein, an
amount to be fixed by the court for court costs and reasonable attorneys' fees.
31. Counterparts. This Lease may be executed in several counterparts and
each such counterpart shall be deemed an original.
32. Miscellaneous.
32.1. Unless Tenant furnishes Landlord with a notice in writing
specifying any default in the Demised Premises within thirty (30) days after
taking possession thereof, such taking of possession shall be conclusive
evidence as against Tenant that at the time of such taking the Demised Premises
were in good order and satisfactory condition.
32.2. Tenant shall be entitled to have its name shown upon the
Directory board of the Building, and Landlord shall design the style of such
identification, and the Directory Board shall be located in an area designated
by Landlord in the main lobby of the Building.
32.3. This Lease shall be deemed to have been made and shall be
construed in accordance with the laws of the State of Colorado.
32.4. The Landlord shall provide the following services, the cost
and expense of which shall be paid by Tenant as provided in paragraph 6 hereof:
(a) Climate control to the Demised Premises during normal
business hours, except during the making of repairs, inspections, alterations
or improvements.
(b) Except when repairs, inspections, alterations and
improvements are being made, elevator service during normal business hours in
common with others.
(c) Landlord shall make available water in reasonable quantity
and cause electric current to be supplied for lighting the Demised Premises and
public halls and for the operation of ordinary office equipment exclusive of
heavy duty equipment including, but without limitation, heavy duty accounting
equipment, computers, heavy duty copying equipment, and the like.
(d) Janitorial and cleaning services to the Demised Premises
in a manner consistent
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with the operation of a non-institutional first class office building.
32.5. "Normal Business Hours" as that term is used in the Lease shall be
deemed to mean the hours from 8:00 a.m. to 6:00 p.m. on Monday through Friday
and the hours from 8:00 a.m. to 1:00 p.m. on Saturdays unless any of such days
is a nationally recognized holiday.
DATED at Colorado Springs, Colorado this 31st day of December 1994.
Landlord: LOUP MANAGEMENT COMPANY
By: /s/
--------------------------------
Tenant: JAYCOR
By: /s/ Xxxx X. Xxxxxx
--------------------------------
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LEASE AMENDMENT
This Lease Amendment dated December 31, 1994 shall be attached to and considered
a part of the certain lease agreement dated December 31, 1994 by and between
Loup Management Company, a Colorado Corporation as Landlord and Jaycor, a
California Corporation as Tenant.
Landlord and Tenant wish to amend the above mentioned lease agreement to provide
for the following:
1. The Tenant will have the right to audit the operating expenses on the
Building. Review and audit of the operating expenses shall be held at
Landlord's office during regular business hours provided the Tenant
provides reasonable notice.
2. Landlord shall be allowed to enter the Tenant's Demised Premises with
twenty-four (24) hour prior notice to Tenant, except in case of
emergency, when no notice will be required.
3. Tenant has the right to remeasure the Demised Premises.
4. Provided Tenant is current in rent and not in default of any of the
provisions of this Lease, Landlord shall allow, a one time option to
terminate this lease at the end of the thirty eighth (38th) month.
Landlord shall require sixty (60) days written notice from Tenant of
cancellation. Should Tenant fail to exercise this provision the right of
termination shall expire and be of no further force and effect. If Tenant
exercises this provision Tenant shall pay Landlord $44,254.39, which
represents the unamortized portion of Landlord's out-of-pocket expenses.
5. Under Section 6.1, Landlord shall pass through to Tenant all reasonable
expenses necessary to operate the Building in a first class manner. See
Exhibit A
6. Under Paragraph 12, Tenant shall have the right to protest any liens that
encumbered the office building due to the actions of the Tenant.
7. Under the Addendum, Tenant will move in Februay 1, 1995. Landlord shall
spend up to $49,000 for the design and construction of the demised
premises. All costs and expenses in excess of $49,000.00 shall be the
responsibility of the Tenant.
8. Refer to Paragraph 4 of Lease:
Base Rent
01-12 Months $8.17 per square foot NNN
13-24 Months $8.52 per square foot NNN
25-36 Months $8.89 per square foot NNN
37-48 Months $9.28 per square foot NNN
49-60 Months $9.68 per square foot NNN
9. Refer to Paragraph 14 of Lease:
Signs:
In lieu of sign allowance Tenant shall receive a $1,500.00 rent
abatement.
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10. Refer to Paragraph 32.6 of Lease:
Parking:
Tenant shall be guaranteed twenty-two (22) unreserved parking spaces for
the term of the lease. The cost of the parking is included in the base
rental rate.
11. Provided Tenant is current on rent and not in default under this lease,
Landlord shall grant Tenant two (2) one (1) year options to renew at the
following rates:
Year Six $11.00 per square foot NNN
Year Seven $12.00 per square foot NNN
Tenant shall notify Landlord ninety (90) days prior to the end of the
initial term of their desire to extend the lease.
AGREED AND ACCEPTED:
LANDLORD: TENANT:
LOUP MANAGEMENT COMPANY JAYCOR
By: /s/ By: /s/ XXXX X. XXXXXX
------------------------------ ----------------------------
Its: Vice President Its: President and CEO
----------------------------- ---------------------------
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EXHIBIT A
EXCEPTIONS TO OPERATING EXPENSES
The following shall not be included in Operating Expenses:
a) leasing commission, accountants' or attorneys' fees, costs and disbursement
and other expenses incurred in connection with proposals, negotiations, or
disputes with tenants or other occupants or prospective tenants or other
occupants, or associated with the enforcement of any leases, disputes with
contractors, or the defense of Landlord is title to or interest in the building
any part thereof,
b) costs (including permit, license, and inspection fees) incurred in
constructing tenant improvements or decorating, painting or redecorating space
for other tenants or other occupants or vacant rentable space, with the
exception of common areas;
c) depreciation and amortization;
d) costs incurred due to the violation by Landlord or any tenant of the terms
and conditions of any lease or due to the negligence or wrongful misconduct of
Landlord, its agents, employees or contractors,
e) interest on debt or amortization payments on any mortgages or deed of trust
or any other borrowings;
f) Landlord's general corporate overhead;
g) any compensation paid to clerks, attendants or other persons in commercial
concessions operated by Landlord excluding parking lot attendant,
h) advertising and promotional expenditures;
i) Landlord shall not recover any item of Operating expenses more than once.
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FLOOR PLAN
11000 SQUARE FEET
[FLOOR PLAN]
