EXHIBIT 10.4
OFFICE LEASE AND NOTE
V2K WINDOW FASHIONS, INC.
0000 Xxxx 00xx Xxxxxx, Xxxxx 0
Xxxxxxxx, Xxxxxxxx 00000
303.202.1120 * 000.000.0000 Fax
Alpen Construction & Development Co. Inc.
Attention: Xxxx Brake
0000 Xxxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000-0000
RE: ALPEN CONSTRUCTION/V2K LEASE/1127 AURARIA PARKWAY
Dear Xxxx:
Enclosed herein is the executed lease for the captioned building.
This letter shall constitute a rider and amendment to paragraph 3.1 of the lease
by providing that instead of a $25,000.00 payment at the time of the execution
of the lease, the payment shall be $5,000.00 and the additional $20,000.00
payment shall be due and payable at the time of the obtainment of the building
permit for the tenant improvements.
With this letter we are also enclosing the Conversion Promissory Note, the
Guarantees and all exhibits including the new schedule D, which sets forth the
specifications for the tenant improvements and our check in the amount of
$5,000.00.
Please confirm that everything is in order and if there are any questions,
please do not hesitate to contact my office.
Yours Truly,
/s/ Xxxxxx Xxx
Xxxxxx Xxx
Chief Technology Officer
Enclosures
"THE VIRTUAL WINDOW FASHION STORE"
xxx.X0Xxxxxxxxxxxxxxx.xxx
OFFICE LEASE
TABLE OF CONTENTS
PAGE
ARTICLE I GRANT OF LEASE ......................................................1
1.1 GRANT..............................................................1
1.2 QUIET ENJOYMENT....................................................1
1.3 COVENANTS OF LANDLORD AND TENANT...................................1
ARTICLE II.....................................................................1
2.1 TERM...............................................................1
2.2 TENANT FINISH WORK.................................................1
2.3 EARLY OCCUPANCY....................................................2
2.4 DELAYED POSSESSION.................................................2
2.5 ACCEPTANCE OF PREMISES.............................................2
ARTICLE III....................................................................3
3.1 BASE RENT..........................................................3
3.2 COMMON ELEMENT EXPENSES............................................3
3.3 DEFINITION AND PAYMENT OF RENT - GENERAL...........................4
3.4 LATE FEES..........................................................4
3.5 SECURITY DEPOSIT...................................................4
ARTICLE IV.....................................................................4
4.1 DESIGNATED USE.....................................................4
4.2 USAGE AND COMPLIANCE WITH LAWS.....................................5
4.3 ABANDONMENT........................................................5
4.4 NUISANCE...........................................................5
ARTICLE V......................................................................5
5.1 SERVICES TO PREMISES...............................................5
5.2 BUILDING SERVICES..................................................5
5.3 MAINTENANCE, REPAIR AND REPLACEMENT................................6
5.4 ADDITIONAL SERVICES................................................7
5.5 ALTERATIONS BY LANDLORD............................................7
5.6 ACCESS BY LANDLORD.................................................8
5.7 EXTENDED USE OF PREMISES...........................................8
ARTICLE VI.....................................................................8
6.1 CONDITION OF PREMISES..............................................8
6.2 FAILURE TO MAINTAIN PREMISES ......................................8
6.3 ALTERATIONS BY TENANT..............................................9
6.4 MECHANICS' LIEN....................................................9
6.5 SIGNS.............................................................10
ARTICLE VII...................................................................10
7.1 LANDLORD'S TAXES..................................................10
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7.2 TENANT'S TAXES....................................................10
7.3 RIGHT TO CONTEST..................................................11
ARTICLE VIII..................................................................11
8.1 TENANT'S INSURANCE................................................11
ARTICLE IX....................................................................12
9.1 INDEMNITY.........................................................12
9.2 SUBROGATION.......................................................12
ARTICLE X.....................................................................12
10.1 ASSIGNMENT AND SUBLETTING BY TENANT...............................12
10.2 FIRST OFFER TO LANDLORD...........................................12
10.3 TENANT'S OBLIGATIONS CONTINUE.....................................12
10.4 SUBSEQUENT ASSIGNMENTS............................................13
10.5 CONDITIONS OF ASSIGNMENT..........................................13
ARTICLE XI....................................................................13
11.1 TENANT'S USE OF PARKING AREA......................................13
ARTICLE XII...................................................................14
12.1 POSSESSION........................................................14
12.2 TRADE FIXTURES, PERSONAL PROPERTY AND IMPROVEMENTS................14
12.3 MERGER............................................................14
12.4 PAYMENTS AFTER TERMINATION........................................14
ARTICLE XIII..................................................................14
13.1 MONTH-TO-MONTH TENANCY............................................14
ARTICLE XIV...................................................................15
14.1 PURPOSE...........................................................15
14.2 OBSERVANCE........................................................15
14.3 MODIFICATION......................................................15
14.4 NON-COMPLIANCE....................................................15
ARTICLE XV....................................................................15
15.1 TAKING OF PREMISES................................................15
15.2 PARTIAL TAKING OF BUILDING........................................15
15.3 SURRENDER.........................................................16
15.4 PARTIAL TAKING OF THE PREMISES....................................16
15.5 AWARDS............................................................16
ARTICLE XVI...................................................................16
16.1 LIMITED DAMAGE TO PREMISES........................................16
16.2 MAJOR DAMAGE TO PREMISES..........................................17
16.3 ABATEMENT.........................................................17
16.4 MAJOR DAMAGE TO BUILDING..........................................17
16.5 FAILURE TO REBUILD................................................17
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ARTICLE XVII..................................................................18
17.1 SALES, CONVEYANCE AND ASSIGNMENT..................................18
17.2 EFFECT OF SALE, CONVEYANCE OR ASSIGNMENT..........................18
17.3 ATTORNMENT........................................................18
17.4 NON-DISTURBANCE...................................................18
17.5 EFFECT OF ATTORNMENT..............................................18
17.6 EXECUTION OF INSTRUMENTS..........................................18
ARTICLE XVIII.................................................................19
18.1 NOTICES...........................................................19
18.2 ESTOPPEL CERTIFICATES.............................................19
ARTICLE XIX...................................................................19
19.1 INTEREST AND COSTS................................................19
19.2 RIGHT OF LANDLORD TO PERFORM COVENANTS............................20
19.3 EVENTS OF DEFAULT.................................................20
19.4 LANDLORD'S REMEDIES UPON DEFAULT .................................21
19.5 WAIVER OF EXEMPTION AND REDEMPTION................................22
19.6 REMEDIES CUMULATIVE...............................................22
19.7 FEES AND COSTS....................................................22
ARTICLE XX....................................................................23
20.1 SUBORDINATION.....................................................23
ARTICLE XXI...................................................................23
21.1 RELATIONSHIP OF PARTIES...........................................23
21.2 NAME OF BUILDING..................................................23
21.3 APPLICABLE LAW AND CONSTRUCTION...................................23
21.4 ENTIRE AGREEMENT..................................................24
21.5 AMENDMENT OR MODIFICATION.........................................24
21.6 CONSTRUED COVENANTS AND SEVERABILITY..............................24
21.7 NO IMPLIED SURRENDER OR WAIVER....................................24
21.8 SUCCESSORS BOUND..................................................24
21.9 TENANT'S PRIOR LESSORS............................................25
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OFFICE LEASE
THIS LEASE AGREEMENT is made and entered into as of the date set forth
below between Landlord described in Paragraph 8 of EXHIBIT A hereto
("Landlord"), and the Tenant described in Paragraph 1 of EXHIBIT A hereto
("Tenant") concerning space located in the Building described in Paragraph 2 of
EXHIBIT A hereto (the "Building"), which is the Suite designated in Paragraph 3
of EXHIBIT A hereto (the "Premises"). The Premises are depicted on the Building
floor plan attached hereto as EXHIBIT B.
Landlord and Tenant, in consideration of the covenants herein
contained, agree as follows:
ARTICLE I
GRANT OF LEASE
1.1 GRANT. Landlord hereby demises and leases the Premises to Tenant,
and Tenant hereby leases and accepts the Premises from Landlord, to have and to
hold during the Term, subject to the terms and conditions of this Lease. The
Premises consist of approximately the Rentable Area set forth in Paragraph 4 of
EXHIBIT A hereto.
1.2 QUIET ENJOYMENT. Landlord agrees that Tenant, upon paying Rent and
all other monetary sums due under this Lease and upon performing the covenants
and conditions of this Lease, may quietly have, hold and enjoy the Premises
during the Term hereof, subject, however, to the provisions for condemnation
hereinafter set forth.
1.3 COVENANTS OF LANDLORD AND TENANT. Landlord covenants to observe and
perform all of the terms and conditions to be observed and performed by Landlord
under this Lease. Tenant covenants to pay the Rent when due under this Lease,
and to observe and perform all of the terms and conditions to be observed and
performed by Tenant under this Lease.
ARTICLE II
TERM AND POSSESSION
2.1 TERM. The Term of this Lease shall be as set forth in Paragraph 5
of EXHIBIT A hereto (with the beginning date of the Term being referred to
herein as the "Commencement Date" as set forth in Paragraph 9 of EXHIBIT A),
unless terminated earlier as provided in this Lease.
2.2 TENANT FINISH WORK. Prior to the Commencement Date, Landlord shall
cause the Premises to be prepared for occupancy in accordance with the Work
Letter in the manner shown on the Space Plan attached to this Lease as EXHIBIT
D, Schedule 1. Landlord's and Tenant's obligations under this paragraph are
subject to the terms and conditions of that certain Work Letter Agreement of
even date herewith, which shall become attached hereto as EXHIBIT D and
incorporated herein.
2.3 EARLY OCCUPANCY. If Tenant occupies (other than for the purpose of
furnishing the Premises) or begins to conduct business in all or any portion of
the Premises before the Commencement Date, Tenant shall pay to Landlord upon
demand, and not later than the Commencement Date in the absence of such demand,
a rental equal to than proportion of Rent for one calendar year which the number
of days of such early occupancy period bears to 365.
2.4 DELAYED POSSESSION. If Landlord is delayed in delivering possession
of all or any portion of the Premises to Tenant on or before the Commencement
Date for reasons not attributable to Tenant's conduct or requests, then Tenant
shall take possession of the Premises on the date (not later than 120 days after
the Commencement Date) when Landlord delivers possession of all of the Premises,
and the last day of the Term shall be advanced so that the total length of the
Term is not diminished. This Lease shall not be void or voidable nor shall
Landlord be liable to Tenant for any loss or damage resulting from any delay in
delivering possession of the Premises to Tenant, but unless such delay is
principally caused by or attributable to Tenant, its servants, agents or
independent contractors, no Rent shall be payable by Tenant for the period prior
to the date on which Landlord can so deliver possession of whatever portion of
the Premises Tenant accepts; provided, however, that Tenant may terminate this
Lease if possession of the Premises is not delivered within such 120-day period.
2.5 ACCEPTANCE OF PREMISES. Taking possession of all or any portion of
the Premises by Tenant shall constitute Tenant's acceptance of the Premises or
such portion thereof as being in satisfactory condition, subject only to latent
defects (if any) listed in writing in a notice delivered by Tenant to Landlord
not more than thirty (30) days after the date of taking possession or the
Commencement Date, whichever later occurs.
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ARTICLE III
RENT
3.1 BASE RENT. Tenant shall pay to Landlord as Base Rent for the
Premises the amount of money set forth in Paragraph 6 of EXHIBIT A, for each
year of the Term, payable in advance and without notice in monthly installments
of one-twelfth of the annual rental as so determined with the first such
installment due upon Lease execution and each subsequent installment due on the
first day of each calendar month after the Commencement Date; provided, however,
Tenant shall prepay, in immediately available funds, Base Rent in an amount
equal to Twenty-Five Thousand and no/100 Dollars ($25,000.00) upon execution of
this Lease, and an additional Twenty-Five Thousand and no/100 Dollars
($25,000.00) on the Commencement Date. Such prepayment shall be applied (i)
Forty-Eight Thousand and no/100 Dollars ($48,000.00) as payment of the first
year of the Lease Term, and (ii) Two Thousand and no/100 Dollars ($2,000.00)
shall be applied as partial payment of the first month of the second year of the
Lease Term. Tenant shall also deliver to Landlord a promissory note of even date
herewith in the maximum amount of One Hundred Forty Thousand and no/100 Dollars
($140,000.00) (the "Conversion Note"), as security for any deferred Base Rent
under this Lease. The Conversion Note is attached hereto, incorporated herein by
reference and marked as EXHIBIT F. If the Commencement Date or last day of the
Term is other than the first day or last day of a calendar month respectively,
the monthly rentals set both herein for the first and last month shall be
prorated for the portion of the Term included within the month in which the date
that is 30 days after the Commencement Date or the last day of the Term occurs,
respectively.
3.2 COMMON ELEMENT EXPENSES. In addition to Base Rent, Tenant shall pay
to Landlord, at the times and in the manner hereinafter provided, its
proportionate share of the costs of maintenance, repair and remodeling of the
Building common elements, including without limitation the elevator and entry
area. Such costs and proration shall be as reasonably determined by the Building
Manager; provided, however, such costs payable by Tenant shall in no event
exceed Four Thousand Eight Hundred and No/100 Dollars ($4,800.00) annually.
Tenant shall pay its proportionate share of such common element expenses within
fifteen (15) days of Tenant's receipt of a monthly invoice from Landlord, which
shall become part of Rend due under this Lease.
The common element expenses shall not include any capital improvement
(except those required by governmental authority, regulation, statute or law now
in effect or imposed or enacted in the future) to the Building, income and
franchise taxes of Landlord, expenses incurred in leasing to or procuring of
tenants, advertising expenses, expenses for the renovating of space for tenants,
indebtedness of Landlord and interest thereon, compensation paid to any home
office employee of Landlord other than management personnel assigned to the
Property, nor any depreciation allowance on the Building.
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3.3 DEFINITION AND PAYMENT OF RENT - GENERAL. All amounts payable by
Tenant to Landlord under this Lease, not limited to that payable under this
Article, shall be deemed to be "Rent" and shall be payable and recoverable as
Rent in the manner herein provided. Rent shall be paid to Landlord, without
deduction or set-off, in legal tender of the jurisdiction in which the Building
is located, at the address of Landlord as set forth in EXHIBIT A, Paragraph 8 of
this Lease, or to such other person or at such other address as Landlord may
from time to time designate in writing. Rent shall not be deemed paid until
actually received by Landlord. Tenant's obligation to pay Rent shall survive the
expiration or earlier termination of this Lease.
3.4 LATE FEES
Landlord and Tenant acknowledge and agree that the Base Rent has been calculated
taking into account a five percent (5%) discount for prompt payment. Such
discount shall apply only if the Base Rent is received by Landlord on or before
the tenth day of the month for which it is due, and, in the event any
installment of Base Rent is not received by Landlord on or before the tenth day
of the month for which it is due, the full rental payment equal to one hundred
five percent (105%) of said installment shall be payable.
3.5 SECURITY DEPOSIT. Concurrently with Tenant's execution of this
Lease, Tenant shall deposit with Landlord an amount equal to Three Thousand and
no/100 Dollars ($3,000.00), which amount shall be held by Landlord as security
for the faithful performance of every provision of this Lease, including, but
not limited to, the provisions relating to the payment of Rent, Landlord may
(but shall not be required to) use, apply or retain all or any xxx of this
Security Deposit for the payment of Rent or any other sum in default, or for the
payment of any amount which Landlord may spend or became additional to spend by
reason of Tenant's Default or to compensate Landlord for any other loss or
damage which Landlord may suffer by reason of Tenant's Default. If any portion
of said Deposit is so used or applied, Tenant shall, within ten (10) days after
written demand therefor, deposit cash with Landlord in an amount sufficient to
restore the Security Deposit to its original amount, and Tenant's failure to do
so shall be deemed a material breach of this Lease. Landlord shall not be
required to keep this Security Deposit separate from its general funds and
Tenant shall not be entitled to interest on said deposit. If Tenant shall fully
and faithfully perform every provision of this Lease to be performed by it, the
Security Deposit or any balance thereof shall be returned to Tenant (or Tenant's
assignee) at the expiration of the Term and after Tenant has vacated the
Premises; however, in no event shall Landlord be under any obligation to return
said deposit earlier than sixty (60) days after the expiration of the Term.
ARTICLE IV
USE OF PREMISES
4.1 DESIGNATED USE. The Premises shall be used and occupied only for
the purpose of general offices and product showroom and for no other purpose.
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4.2 USAGE AND COMPLIANCE WITH LAWS. The Premises shall be used and
occupied in a safe, careful and proper manner so as not to interfere with, annoy
and disturb any other Tenant in its normal business operations or Landlord in
its management of the Building nor shall Tenant contravene any present or future
governmental or quasi-qovernmental laws, regulations or orders applicable to
Tenant or the Premises. If due to Tenant's use of the Premises, improvements are
necessary to comply with any of the foregoing or with the requirements of
Tenant's insurance carriers, Tenant shall pay the entire cost thereof.
4.3 ABANDONMENT. Tenant shall not vacate or abandon the Premises at any
time during the term without Landlord's written consent.
4.4 NUISANCE. Tenant shall not cause or maintain any nuisance in or
about the Premises, and shall keep the Premises and Building common areas free
of debris, rodents, vermin and anything of a dangerous, noxious or offensive
nature or which could create a fire, environmental or other hazard of undue
vibration, heal, noise or weight upon or about the Premises. Landlord shall not
be liable to Tenant for the failure to enforce the terms of this Article upon
Tenant or other occupants of the Building.
ARTICLE V
SERVICES, MAINTENANCE, REPAIR AND ALTERATIONS BY LANDLORD
5.1 SERVICES TO PREMISES. Subject to Tenant's payment of its Rent,
Landlord shall provide in the Premises during Regular Business hours (as defined
in Paragraph 5.7 hereof):
(a) Heat, ventilation and cooling (subject to governmental
restrictions) as may be customary for office buildings of similar class and type
in the Denver, Colorado metropolitan area, during normal business hours;
(b) Replacement of Building standard fluorescent tubes, light
bulbs, and ballasts as required from time to time as a result of normal usage;
(c) Electrical power for normal lighting and customary small
business office equipment (but not including machines of high electrical
consumption which may cause overloading of the Building's electrical circuits
nor special meter installation and temperature control as may be directly
associated therewith).
5.2 BUILDING SERVICES. Landlord shall provide in the Building:
(a) Domestic running water in washrooms sufficient for the normal
and customary use thereof by occupants in the Building;
(b) Access to and egress from the Premises, including snow removal
in the parking areas as necessary; and
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(c) Elevator service, heat, ventilation, cooling, lighting,
electric power and domestic running water and general building clearing and
maintenance in these areas of the Building as may from time to time be
designated by Landlord for use during normal business hours by Tenant in common
with all tenants in the Building under the exclusive control of Landlord.
5.3 MAINTENANCE, REPAIR AND REPLACEMENT.
(a) Landlord shall operate, maintain, repair and replace the
systems, facilities and equipment directly necessary for the provision of
Landlord services under this Article (except as such may be installed by or be
the property of Tenant), and shall be responsible for and shall maintain and
repair the foundations, structure, supports and roof of the Building and shall
operate the Building as a quality office building;
(b) If all or part of such systems, facilities and equipment are
destroyed, damaged or impaired, Landlord shall have thirty (30) days following
the occurrence in which to complete the necessary repair or replacement, and
during that time shall be required only to maintain such services as are
reasonably possible in the circumstances;
(c) Landlord may temporarily discontinue such services or any of
them at such times as may be necessary due to accidents, risks, breakage,
strikes or other labor disputes, or in cooperation with a governmental request
or direction, or by any other act of God or cause beyond the reasonable control
of Landlord or for purposes of maintenance, repair, replacement, testing or
examination, provided Tenant is not prevented from accessing or using the
Premises, but at no time shall such discontinuance of service continue for more
than thirty (30) consecutive days;
(d) Landlord shall use reasonable diligence in carrying out its
obligations under this Article;
(e) Provided that Landlord is properly performing under this
Article, no reduction or discontinuance of such services under this Article
shall be construed as an eviction of Tenant or (except as specifically provided
in this Lease) release Tenant from any obligation of Tenant under this Lease
unless such material reduction or discontinuance of service shall continue for a
period of thirty (30) consecutive days;
(f) Notwithstanding the provisions of subparagraph 5.3(e) above to
the contrary, in the event that Tenant is prevented from using or occupying the
Premises or any portion thereof for not less than five (5) consecutive days as a
result of any damage, or destruction to the Premises, or any failure of Landlord
to provide service or access to the Premises, then Tenant's Rent shall be abated
or reduced, as the case may be, in the proportion that the rentable area of the
portion of the Premises that Tenant is prevented from using bears to the total
rentable area of the Premises during the period Tenant is prevented from
conducting its business from the Premises or the unusable portion of the
Premises. However, in the event that Tenant is prevented from conducting its
business in any portion of the Premises, and the remaining portion of the
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Premises is not sufficient to allow Tenant to effectively conduct its business
therein, and if Tenant does not conduct its business from such remaining
portion, then the Rent for the entire Premises shall be abated during said
period; however, if Tenant reoccupies and conducts its business from any portion
of the Premises during such period, the Rent allocable to such reoccupied
portion, based upon the portion which the rentable area of such reoccupied
portion of the Premises bears to the total rentable area of the Premises, shall
be payable by Tenant from the date such business operations commence.
(g) Nothing contained herein shall derogate from the provisions of
that Article entitled Damage by Fire or Other Casualty.
5.4 ADDITIONAL SERVICES.
(a) If from time to time requested in writing by Tenant and to the
extent that it is reasonably able to do so, Landlord may provide the Premises
services in addition to those set out in this Article, provided that Tenant
shall, within ten (10) days of receipt of any invoice for any such additional
service pay Landlord therefor at such reasonable rates as Landlord may from time
to time establish.
(b) Tenant shall not without Landlord's written consent install in
the Premises equipment (including telephone equipment) which generates
sufficient heat to affect the temperature otherwise maintained in the Premises
by the air conditioning system as normally operated. If Tenant does so, Landlord
may install supplementary air conditioning units, facilities, or services in the
Premises, or modify its air conditioning system, as may in Landlord's reasonable
opinion be required to maintain proper temperature levels, and Tenant shall pay
Landlord within ten (10) days of receipt of any invoice for the cost thereof,
including installation, operation and maintenance expense.
(c) If Landlord shall from time to time reasonably determine that
the use of electricity or any other utility or service in the Premises is
disproportionate to the usage of the other tenants, Landlord may separately
charge Tenant for the excess costs attributable to such disproportionate use. At
Landlord's request, Tenant shall install and maintain at Tenant's expense, a
metering device for checking the additional or excess use of any such utility or
services in the Premises.
5.5 ALTERATIONS BY LANDLORD.
(a) Make repairs, replacements, changes or additions to the
structure, systems, facilities and equipment in the Premises where necessary to
serve the Premises or other parts of the Building;
(b) Make changes in or additions to any part of the Building not
in or forming part of the Premises; and
(c) Change or alter the location of any areas of the Building
which may, from time to time, be designated by Landlord for use during normal
business hours by Tenant in common with all tenants in the Building but under
the exclusive control of
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Landlord, so long as such foregoing changes and/or alteration do not render
the Building to be less than a quality office building.
5.6 ACCESS BY LANDLORD. Tenant shall permit Landlord to enter the
Premises outside normal business hours, and during normal business hours where
such entry will not unreasonably disturb or interfere with Tenant's use of the
Premises and operation of its business, to examine, inspect, and show the
Premises to persons wishing to lease them, to provide services or make repairs,
replacements, changes or alterations as set out in this Lease, to take such
steps as Landlord may deem necessary for the safety, improvement or preservation
of the Premises or the Building. Landlord shall have no obligation or
responsibility to take any steps related to the safety, improvements or
preservation of the Premises, such obligation and responsibilities being solely
Tenant's. Landlord shall, whenever reasonable, consult with or give reasonable
notice to Tenant prior to such entry, but no such entry shall constitute an
eviction or entitle Tenant to any abatement of Rent.
5.7 EXTENDED USE OF PREMISES. Landlord and Tenant agree that Tenant may
have extended use of the Premises beyond "Regular Business Hours", which are
defined to be 6:00 a.m. to 6:00 p.m. Monday through Friday, and 8:00 a.m. to
2:00 p.m., Saturday (excepting, in any event, legal holidays). In the event of
extended use by Tenant beyond Regular Business Hours and to the degree that
Tenant's extended use of the Premises creates additional operating and
maintenance costs for Landlord, Landlord shall be entitled to charge Tenant the
amount indicated in EXHIBIT A, Paragraph 12 for Tenant's extended use. Landlord
will provide the Tenant with a monthly invoice for the extended use costs,
payable within 10 days, and which shall become part of the Rent due under this
Lease.
ARTICLE VI
MAINTENANCE, REPAIR, ALTERATIONS AND IMPROVEMENTS BY TENANT
6.1 CONDITION OF PREMISES. Except to the extent that Landlord is
specifically responsible therefor under this Lease, Tenant shall maintain the
Premises and all improvements therein in good order and condition, including:
(a) Subject to reasonable and ordinary wear and tear, cleaning
blinds and carpets at reasonable intervals as needed; and
(b) Making repairs, replacements and alterations as needed,
including those necessary to maintain the Premises in a manner consistent with
the Building and comply with the requirements of any governmental or
quasi-governmental authority having jurisdiction. Any such repairs, replacements
or alterations and contractors hired to perform them will be subject to
Landlord's prior written approval and the provisions of Paragraph 6.3.
6.2 FAILURE TO MAINTAIN PREMISES. If Tenant fails to perform any
obligation under Article 6.1 following ten (10) days' written notice from
Landlord, then Landlord may enter the Premises and perform such obligations
without liability to Tenant for any
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loss or damage to Tenant thereby incurred, and Tenant shall pay Landlord for
the cost thereof, within ten (10) days of receipt of Landlord's invoice
therefor.
6.3 ALTERATIONS BY TENANT. Tenant may from time to time at its own
expense make changes, additions and improvements in the Premises to better adapt
the same to its business, provided that any such Tenant charge, addition or
improvement shall:
(a) Be of equal quality to or exceed the then current standard for
the Building;
(b) Be documented by adequate plans and specifications only as
approved by Landlord in its sole discretion, and be performed in accordance with
all governmental requirements including proper permitting;
(c) Be carried out only by persons selected by Tenant and approved
in writing by Landlord, who shall, if required by Landlord, deliver to Landlord
before commencement of the work performance and payment bonds as well as proof
of worker's compensation, public liability, property damage, auto and other
insurance required by Landlord, with Landlord named as an additional insured, in
amounts, with companies, and in the form reasonably satisfactory to Landlord,
which insurance shall remain in effect during the entire period in which the
work will be carried out; and
(d) Become the property of Landlord and be surrendered to Landlord
upon termination of the Lease, Landlord may, at its option, require Tenant to
remove any physical additions and/or repair any alterations in order to restore
the Premises to the condition existing at the time Tenant took possession, all
costs of which shall be borne by Tenant regardless whether such removal and/or
repair is undertaken by Tenant or Landlord, before or after the termination of
this Lease.
(e) INVOLVE A CONSTRUCTION COORDINATION FEE TO LANDLORD OF 4% OF
TOTAL CONSTRUCTION COSTS.
Tenant covenants and agrees not to obtain any financing secured by
Tenant's interest in the Premises and not to encumber the Premises or Landlord's
or Tenant's interest therein, without the prior written consent of Landlord; to
keep the Premises free from all liens and encumbrances except those created by
Landlord by obtaining proper lien waivers from contractors and subcontractors
prior to payment for work performed and by posting the Premises for
non-liability by Landlord.
Any increase in property taxes on or fire or casualty insurance
premiums for the Building attributable to such change, addition or improvement
shall be borne by Tenant. Subsequent to the completion of any such change by
Tenant, Tenant at its sole cost and expense shall provide Landlord with a
complete set of as-built drawings reflecting said changes.
6.4 MECHANICS' LIEN. Tenant shall obtain lien waivers and pay before
delinquency all costs for work done or caused to be done in the Premises which
could result in any lien or encumbrance on Landlord's interest in the Building
or any part
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thereof, or the land on which it is situated, shall keep the title to the same
free and clear of any lien or encumbrance in respect of such work and shall
indemnify and hold harmless Landlord against any claim, loss, cost, demand and
legal or other expense, whether in respect of any lien or otherwise, arising out
of the supply of material, services or labor for such work. Tenant shall
immediately notify Landlord of any such lien, claim of lien or other action of
which it has or reasonably should have knowledge and which affects the title to
the Building or any part thereof, and shall cause the same to be removed within
thirty (30) days, or alternatively to provide sufficient assurances to Landlord,
failing which landlord may take such action as Landlord deems necessary to
remove the same and the entire cost thereof shall be immediately due and payable
by Tenant to Landlord, along with a 10% additional charge for Landlord's cost of
administering the process.
6.5 SIGNS. Any sign, lettering or design of Tenant which is visible
from the exterior of the Premises shall be at Tenant's expense and subject to
approval by the property owner's association and Landlord in their sole
independent discretion and shall conform to any uniform pattern of
identification signs for tenants in the Building as may, from time to time, be
prescribed by Landlord. Tenant shall not inscribe or affix any sign, lettering
or design in the Premises or Building which is visible, through the windows,
from the exterior of the Building. Tenant shall also be entitled, subject to the
reasonable approval of the property owner's association and Landlord in their
sole independent discretion, to signage equivalent to twenty-five percent (25%)
of the Building's exterior signage of approximately thirty-six (36) square feet
on located adjacent to Auraria Parkway.
ARTICLE VII
TAXES
7.1 LANDLORD'S TAXES. Landlord shall pay before delinquency (subject to
payment by Tenant of its Rent) every real estate tax and assessment, excepting
Tenant's Taxes under Article 7.2, which are imposed, levied, assessed or charged
by any governmental or quasi-governmental authority having jurisdiction, and
which are payable in respect of the Building or the land on which it is
situated.
7.2 TENANT'S TAXES. Tenant shall pay before delinquency every tax,
assessment, license fee, excise and other charge, however described, which is
imposed, levied, assessed or charged against Tenant by any governmental or
quasi-governmental authority having jurisdiction and which is payable in respect
to the:
(a) Operations at, occupancy of, or conduct of business in or from
the Premises by or with the permission of Tenant;
(b) Fixtures or personal property in the Premises which do not
belong to the Landlord; and
(c) The Rent paid or payable by Tenant to Landlord for the
Premises or for the use and occupancy of all or any part thereof.
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If the Tenant fails in pay any such tax for which it is liable, and if
the non-payment thereof is likely to result in the imposition of any lien
against the Building or any other property of Landlord (or the possibility of
sale or forfeiture thereof), then Landlord may, following ten (10) days' written
notice to Tenant, pay such amount, which amount shall immediately be due and
payable to Landlord together with a surcharge of twenty percent (20%) of the
amount paid.
7.3 RIGHT TO CONTEST. Landlord and Tenant shall each have the right to
contest in good faith the validity or amount of any tax, assessment, license
fee, excise fee or other charge which it is responsible to pay, provided that no
contest by Tenant may involve the possibility of forfeiture, sale or disturbance
of Landlord's interest in the Premises and that upon the final determination of
any contest by Tenant, Tenant shall immediately pay and satisfy the amount found
to be due, together with any costs, penalties and interest, and further provided
that during the pendency of such contest adequate reserves are maintained (or at
the option of the Landlord, a bond is provided to cover 125% of the amount being
contested) by Tenant so as to insure payment of any tax, assessment, license
fee, excise fee or other charge which is finally determined to be due, with any
interest or penalty thereon.
ARTICLE VIII
INSURANCE
8.1 TENANT'S INSURANCE. During the Term, Tenant shall maintain at its
own expense:
(a) Fire insurance with extended coverage and water damage
insurance in amounts equal to the full replacement value of Tenant's
improvements and all property in the Premises which is not owned by Landlord;
(b) Liability insurance, with Landlord named as an additional
insured, against claims for death, personal injury and property damage in or
about the Premises, in amounts of $1,000,000 for death, illness or injury to one
or more persons, and $500,000 for property damage, in respect to each
occurrence; and
(c) Worker's Compensation insurance covering all persons employed
by Tenant in or about the Premises, including contract labor for Tenant
activities.
Policies for such insurance shall be in a form and with an insurer
reasonably acceptable to Landlord. Where applicable, such policies shall include
a waiver of subrogation, and no such policy shall in any way reduce the amount
payable under a policy carried by Landlord on account of a casualty loss. Tenant
shall furnish Landlord with satisfactory proof of all insurance policies
required to be maintained by Tenant, and deliver all renewals, both without
necessity of demand therefor. Tenant will further provide evidence of payment of
the premiums thereof within ten days of request by Landlord.
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ARTICLE IX
INJURY TO PERSON OR PROPERTY
9.1 INDEMNITY. Unless remedies are provided for in other Articles of
this Lease for the occurrence of any particular event or events, in which case
such remedies shall be exclusive unless otherwise stated in such other articles,
Tenant and Landlord shall to the extent provided in this Article, indemnify and
save harmless each other from and against every demand, claim, cause of action,
judgment, loss, damage and expense arising from any injury to the person or
property of the other, where the injury or damage is caused by the fraud,
negligence or willful misconduct of the party sought to be held responsible
therefor, (or its agents, servants or employees) or results from the violation
by the party sought to be held responsible therefor (or its agents, servants or
employees) of laws or ordinances, governmental orders of any kind, or the
provisions of this Lease.
9.2 SUBROGATION. In the event any action or proceeding is brought
against the Tenant or Landlord by reason of any claim described within this
Article IX, such are subject to the waiver of any right of subrogation contained
within insurance policies required to be carried under this Lease.
ARTICLE X
ASSIGNMENT AND SUBLETTING
10.1 ASSIGNMENT AND SUBLETTING BY TENANT. Tenant shall not have the
right to sublet or assign this Lease without Landlord's prior written consent,
which consent shall not be unreasonably withheld, and any attempt to do so shall
constitute a material breach and an event of default of this Lease. Landlord
shall not unreasonably withhold its consent of Tenant or a company which on the
date of execution of this Lease owns substantially all of the outstanding stock
of Tenant, or a company which results from the reconstruction, consolidation,
amalgamation or merger of Tenant, and from which Tenant is the surviving and
controlling entity, or a general partnership in which Tenant has a majority
interest (collectively called "Exempt Entities"). No subtenant or assignee of
the Premises or any portion thereof may assign or sublet the Premises or any
portion thereof.
10.2 FIRST OFFER TO LANDLORD. If Tenant wishes to assign or sublet this
Lease (except to an Exempt Entity) Tenant shall first offer in writing to assign
or sublet (as the case may be) to Landlord on the same terms and conditions and
for the same Rent as provided in this Lease. Any such first offer shall be
deemed to have been rejected unless within five (5) days of receipt thereof
Landlord delivers written notice of acceptance to Tenant.
10.3 TENANT'S OBLIGATIONS CONTINUE. No assignment, transfer or
subletting which is permitted under this Article shall in any way release or
relieve Tenant or any Guarantor of its obligations under this lease unless such
release or relief is specifically
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granted by Landlord to Tenant in writing and executed with like formality as
this Lease, or except to the extent Landlord accepts the offer to sublease or
assign as set forth in Article 10.2
10.4 SUBSEQUENT ASSIGNMENTS. Landlord's consent to an assignment,
transfer or subletting shall not be deemed to be a consent to any subsequent
assignment, transfer, subletting, use or occupation.
10.5 CONDITIONS OF ASSIGNMENT. If Tenant desires to assign or sublet
all or any part of the Premises, it shall so notify Landlord at least thirty
days in advance of the date on which Tenant desires to make such assignment or
sublease. Tenant shall provide Landlord with a copy of the proposed assignment
or sublease and such information as Landlord might request concerning the
proposed sublessee or assignee to allow Landlord to make informed judgments as
to the financial condition, reputation, operations and general desirability of
the proposed sublease, or assignee. Within fifteen days after Landlord's receipt
of Tenant's proposed assignment or sublease and all required information
concerning the proposed sublessee or assignee, Landlord shall have the following
options: (1) cancel this Lease as to the Premises or portion thereof proposed to
be assigned or sublet; (2) consent to the proposed assignment or sublease, and
if the Rent due and payable by any assignee or sublessee under any such
permitted assignment or sublease (or a combination of the Rent payable under
such assignment or sublease plus any bonus or any other consideration or any
payment incident thereto) exceeds the Rent payable under this Lease for such
space, Tenant shall pay to Landlord all such excess Rent and other excess
consideration within ten days following receipt thereof by Tenant; or (3)
refuse, in its reasonable discretion and judgment, to consent to the proposed
assignment or sublease, which refusal shall be deemed to have been exercised
unless Landlord gives Tenant written notice providing otherwise within 10 days.
Upon the occurrence of an event of default, if all or any part of the Premises
are then assigned or sublet, Landlord, in addition to any other remedies
provided by this Lease or provided by law, may, at its option, collect directly
from the assignee or sublessee all rents becoming due to Tenant by reason of the
assignment or sublease, and Landlord shall have a security interest in all
property on the Premises to secure payment of such sums. Any collection directly
by Landlord from the assignee or sublessee shall not be construed to constitute
a novation or a release of Tenant or any guarantor from the further performance
of its obligations under this Lease.
ARTICLE XI
PARKING
11.1 TENANT'S USE OF PARKING AREA. Tenant agrees to obey such rules and
regulations as Landlord may deem necessary for the safety and efficiency of
operation of the parking area and shall not use or occupy (nor permit its
employees and invitees to occupy) spaces designated for the use of others,
including without limitation, visitor parking. No bailment shall be created by
use of the parking area. Landlord and Tenant have agreed to the parking spaces
referred to in Paragraph 7 of EXHIBIT A. Under no circumstances may Tenant
assign, lease or transfer the rights to the use of parking
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spaces granted herein, except in connection with a permitted assignment or
sublease of this Lease.
ARTICLE XII
SURRENDER
12.1 POSSESSION. Upon the expiration or other termination of the Term
and without further notice, Tenant shall immediately quit and surrender
possession of the Premises in like condition as that which Tenant received the
same and was to maintain the Premises, excepting only ordinary wear and tear.
Upon such surrender, all right, title, and interest of Tenant in the Premises
shall cease.
12.2 TRADE FIXTURES, PERSONAL PROPERTY AND IMPROVEMENTS. After the
expiration or other termination of the Term, all of Tenant's trade fixtures,
personal property and improvements remaining on the Premises shall be deemed
conclusively to have been abandoned by Tenant and may be appropriated, sold,
destroyed or otherwise disposed of by Landlord without none, or obligation to
compensate Tenant or to account therefor, and Tenant shall pay to Landlord on
written demand all costs incurred by Landlord in connection therewith.
12.3 MERGER. The voluntary or other surrender of this Lease by Tenant
or the cancellation of this Lease by mutual agreement of Tenant and Landlord
shall not work a merger, and shall, of Landlord's sole option and discretion,
terminate all or any subleases and subtenancies or operate as an assignment to
Landlord of all or any subleases or subtenancies. Landlord's option hereunder
shall be exercised by notice to Tenant and all known subtenants in the Premises
or any part thereof.
12.4 PAYMENTS AFTER TERMINATION. No payments of money by Tenant to
Landlord after the expiration or other termination of the Term or after the
giving of any notice by Landlord to Tenant, shall reinstate, continue or extend
the Term or make ineffective any notice given to Tenant prior to the payment of
such money. After final service of notice or the commencement of a suit, or
after final judgment granting Landlord's possession of the Premises, Landlord
may receive and collect any sums of Rent due under the Lease, and the payment
thereof shall not make ineffective any notice, or in any manner affect any
pending suit or any judgment theretofore obtained.
ARTICLE XIII
HOLDING OVER
13.1 MONTH-TO-MONTH TENANCY. If, with Landlord's express written
consent, Tenant remains in possession of the Premises after the expiration or
other termination of the Term, Tenant shall be deemed to be occupying the
Premises on a month-to-month tenancy only, at the then-existing Base Rental, and
such month-to-month tenancy may be terminated by Landlord or Tenant on the last
day of any calendar month by delivery of at least ten (10) days advance notice
of termination to the other. During such tenancy all terms and conditions of
this Lease except the Term
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and any right of renewal shall remain in full force and effect and nothing
contained in this Article shall be construed to limit or impair any of
Landlord's rights of re-entry or eviction or constitute a waiver thereof. If
Tenant remains in possession of the Premises without Landlord's consent, the
applicable monthly rental shall be one and one-half times the then-existing Base
Rental.
ARTICLE XIV
RULES AND REGULATIONS
14.1 PURPOSE. The Rules and Regulations in EXHIBIT C have been adopted
by Landlord for the safety, benefit and convenience of all tenants and other
persons in the Building.
14.2 OBSERVANCE. Tenant shall at all times comply with, and shall cause
its employees, agents, licensees and invitees to comply with, the Rules and
Regulations from time to time in effect.
14.3 MODIFICATION. Landlord may from time to time, for the purposes set
out in this Article, amend, delete from, or add to the Rules and Regulations,
provided that any such modification:
(a) Shall not be in conflict with any other provision of this
Lease;
(b) Shall be reasonable and have general application to tenants in
the Building; and
(c) Shall be effective only upon delivery of a copy thereof to
Tenant at the Premises or posting the same upon a conspicuous place within the
Building or property upon which the Building is situated.
14.4 NON-COMPLIANCE. Landlord shall use reasonable efforts to secure
compliance by all tenants and other persons with the Rules and Regulations from
time to time in effect, but shall not be responsible to Tenant for failure of
any person to comply with such Rules and Regulations.
ARTICLE XV
EMINENT DOMAIN
15.1 TAKING OF PREMISES. If during the Term all the Premises shall be
taken for any public or quasi-public use under any statute or by right of
eminent domain, or purchased under threat of such taking, this Lease shall
automatically terminate on the date on which the condemning authority takes
possession of the Premises (hereinafter called the "date of such taking").
15.2 PARTIAL TAKING OF BUILDING. If during the Term only part of the
Building is so taken or purchased as set out in Article 15.1, then:
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(a) If in the reasonable opinion of Landlord, substantial
alteration or reconstruction of the Building is necessary or desirable as a
result thereof, whether or not the Premises are or may be affected, Landlord
shall have the right to terminate this Lease by giving Tenant at least sixty
(60) days' written notice thereof.
(b) If more than one-third (1/3) of the number of square feet in
the Premises is included in such taking or purchase, Landlord and Tenant shall
each have the right to terminate this Lease by giving the other at least sixty
(60) days' written notice thereof.
15.3 SURRENDER. On any such date of termination under Article 15.1 or
15.2, Tenant shall immediately surrender to Landlord the Premises and all
interests therein under this Lease. Landlord may re-enter and take possession of
the Premises and remove Tenant therefrom, and the Rent shall xxxxx on the date
of termination, except that if the date of such taking differs from the date of
termination. Rent shall xxxxx on the former date in respect to the portion
taken. After such termination and on notice from Landlord stating the Rent then
owing, Tenant shall forthwith pay Landlord such Rent.
15.4 PARTIAL TAKING OF THE PREMISES. If any portion of the Premises
(but less than the whole thereof) is so taken, and no rights of termination
herein conferred are timely exercised, the Term of this Lease shall expire with
respect to the portion so taken on the date of such taking. In such event the
Rent payable hereunder with respect to such portion so taken shall xxxxx on such
date, and the Rent thereafter payable with respect to the remainder not so taken
shall be adjusted pro rata by Landlord in order to account for the resulting
reduction in the number of square feet in the Premises.
15.5 AWARDS. Upon any such taking or purchase, Landlord shall be
entitled to receive and retain the entire award or consideration for the
affected lands and improvements, and Tenant shall not have nor advance any claim
against Landlord or the condemning authority for its leasehold estate for the
unexpired Term of the Lease, or against Landlord for the value of its property,
costs of removal or relocation, or business interruption expense or any other
damages arising out of such taking or purchase. Nothing herein shall give
Landlord any interest in or preclude Tenant from seeking and recovering on its
own account from the condemning authority any award or compensation attributable
to the taking or purchase of Tenant's property, chattels or trade fixtures or
the removal or relocation of its business. If any such award made or
compensation paid to Tenant specifically includes an award or amount for
Landlord, Tenant shall promptly account therefor to Landlord.
ARTICLE XVI
DAMAGE BY FIRE OR OTHER CASUALTY
16.1 LIMITED DAMAGE TO PREMISES. If all or part of the Premises are
rendered untenable by damage from fire or other casualty involving the Premises
and/or the Building which, in the reasonable opinion of Landlord, can be
substantially repaired
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under applicable laws and governmental regulations within 90 days from the date
of such casualty, Landlord shall forthwith and to the extent insurance proceeds
are made available therefor, repair such damage other than damage to
improvements, furniture, chattels or trade fixtures which do not belong to
Landlord. If Landlord fails substantially to complete such repairs within such
ninety (90) day period, Tenant may elect to terminate this Lease effective as of
the date of such casualty by written notice delivered to Landlord within thirty
(30) days after the end of such ninety (90) day period.
16.2 MAJOR DAMAGE TO PREMISES. If all or part of the Premises are
rendered untenantable by damage from fire or other casualty involving the
Premises and/or the Building which, in the reasonable opinion of the Landlord
cannot be substantially repaired under applicable laws and governmental
regulations within 90 days from the date of such casualty, Landlord shall notify
Tenant in writing within thirty (30) days following such casualty, then either
Landlord or Tenant may elect to terminate this Lease as of the date of such
casualty by written notice delivered to the other not more than less (10) days
after the receipt of such written notice, failing which Landlord shall forthwith
and to the extent insurance proceeds are made available therefor, repair such
damage other than damage to improvements, furniture, chattels or trade fixtures
which do not belong to Landlord.
16.3 ABATEMENT. If all or any portion of the Premises are rendered
untenantable by damage from fire or other casualty involving the Premises and/or
the Building, the Rent payable by Tenant hereunder may be proportionately
reduced to the extent that the Premises are thereby rendered unusable by Tenant
in its business, from the date of such casualty until completion by Landlord of
the repairs to the Premises (or the part thereof rendered unleaseable) or until
Tenant again uses the Premises (or the part thereof rendered unusable) in its
business, whichever first occurs. The amount of proration shall be agreed upon
by Landlord and Tenant. Notwithstanding anything else contained herein, Rent
payable by Tenant hereunder shall not be abated if the damage is caused by any
act or omission of Tenant, its agents, servants, employees or any other person
entering upon the Premises under express invitation of Tenant.
16.4 MAJOR DAMAGE TO BUILDING. If all or a substantial part (whether or
not including the Premises) of the Building is rendered maintainable by damage
from fire or other casualty to such a material extent that in the reasonable
opinion of Landlord the Building must be totally or partially demolished,
whether or not to be reconstructed in whole of in part, Landlord may elect to
terminate this Lease as of the date of such casualty (or on the date of notice
if the Premises are unaffected by such casualty) by written notice delivered to
Tenant not more than sixty (60) days after the date of such casualty.
16.5 FAILURE TO REBUILD. In the event this Lease is not otherwise
terminated following damage from fire or other casualty in accordance with
Article 16.1, 16.2 or 16.4 and Landlord fails to substantially complete repairs
or rebuilding within one hundred eighty (180) days from the date of the
casualty, Tenant may elect to terminate this Lease by providing landlord with
written notice of termination within thirty (30) days following said 180th day.
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ARTICLE XVII
TRANSFERS BY LANDLORD AND ATTORNMENT
17.1 SALES, CONVEYANCE AND ASSIGNMENT. Nothing in this Lease shall
restrict the right of Landlord to sell, convey, assign or otherwise deal with
the Building subject only to the rights of Tenant under this Lease.
17.2 EFFECT OF SALE, CONVEYANCE OR ASSIGNMENT. Provided that Tenant's
Security Deposit is transferred to Landlord's successor, a sale, conveyance or
assignment of the Landlord's leasehold shall operate to release Landlord from
liability from and after the effective date thereof upon all of the covenants,
terms and conditions of this Lease, express or implied, except as such may
relate to the period prior to such effective date of such sale, conveyance or
assignment, and Tenant shall thereafter look solely to Landlord's
successor-in-interest in and to this Lease. This Lease shall not be affected by
any such sale, conveyance or assignment, and Tenant shall attorn to Landlord's
successor-in-interest thereunder.
17.3 ATTORNMENT. Subject to Article 17.5, if the interest of Landlord
is transferred to any person (herein called "Purchaser") by reason of
foreclosure or other proceedings for enforcement of any mortgage or deed of
trust, or by delivery of a deed in lieu of such foreclosure or other
proceedings, Tenant shall immediately and automatically attorn to Purchaser.
17.4 NON-DISTURBANCE. Subordination of this Lease and attainment by
Tenant to the holder of any mortgage or deed of trust which would be subordinate
to this Lease pursuant to the provisions of Article 17.3 shall be effective
unless Purchaser delivers to Tenant a written undertaking that this Lease and
Tenant's rights hereunder shall be terminated based on such subordination.
17.5 EFFECT OF ATTORNMENT. Upon attornment under this Article, and
subject to the provisions of Article 17.4, this Lease shall continue in full
force and effect as a direct Lease between Purchaser and Tenant, upon all of the
same terms, conditions and covenants as are set forth in this Lease except that,
after such attornment, Purchaser shall not be:
(a) Liable for any act or omission of any previous Landlord; or
(b) Subject to any offsets or defenses which Tenant might have
against any previous Landlord; or
(c) Bound by any prepayment by Tenant of more than one 1 month's
installment of Rent.
17.6 EXECUTION OF INSTRUMENTS. The subordination and attornment
provisions of this Article XVII shall be self-operating and, except as set out
in Article 17.4, no further instrument shall be required. Nevertheless Tenant,
on request by and without cost to Landlord or any successor-in-interest, shall
execute and deliver any and all reasonable
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instruments further evidencing such subordination and (where applicable
hereunder) attornment.
ARTICLE XVIII
NOTICES, ACKNOWLEDGEMENT, AUTHORITIES FOR ACTION
18.1 NOTICES. Any notice from one party to the other hereunder shall be
in writing and shall be deemed duly served if delivered personally to an officer
of the party being served, or if mailed by registered or certified mail, return
receipt requested, vacated or abandoned the same) (or to such other person or at
such other address as Tenant may from time to time designate in writing) or to
Landlord at the place from time to time established for the payment of Rent. Any
notice shall be deemed to have been given at the time of personal delivery or,
if mailed, on the first to occur of the date of delivery set forth on the return
receipt, the date delivery was refused by the addressee, or the date such notice
was returned by the post office due to failure of the addressee to accept
delivery. Either party shall have the right to designate by notice, in the
manner above set forth, a different address to which notices are to be mailed.
18.2 ESTOPPEL CERTIFICATES. Tenant shall at any time and from time to
time upon not less than five (5) days prior notice from the other execute,
acknowledge and deliver a written statement certifying that:
(a) This Lease is in full force and effect, subject only to such
modifications (if any) as may be set out therein;
(b) Tenant is in possession of the Premises and paying Rent as
provided in this Lease;
(c) The dates (if any) to which Rent is paid in advance; and
(d) That there are not, to Tenant's knowledge, any uncured
defaults on the part of Landlord or specifying such defaults if any are claimed.
Any such statement may be relied upon by any prospective
transferee or encumbrancer of all or any portion of the building, or any
assignee of any such persons. If Tenant fails to timely deliver such statement,
Tenant shall be deemed to have acknowledged that this Lease is in full force and
effect, without modification except as may be represented by Landlord, and felt
there are no uncured defaults in Landlord's performance.
ARTICLE XIX
DEFAULT
19.1 INTEREST AND COSTS. Tenant shall pay to Landlord interest at a
rate equal to the lesser of 1-1/2% per month, or the maximum rate permitted by
applicable law, upon all
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Rent required to be paid hereunder from and after the fifth day following the
due date for payment thereof until the same is fully paid and satisfied. Tenant
shall indemnify Landlord against all costs and charges (including legal fees)
lawfully and reasonably incurred in enforcing payment thereof, and in obtaining
possession of the Premises after default of Tenant or upon expiration or earlier
termination of the Term of this Lease, or in enforcing any covenant, provision
or agreement of Tenant herein contained.
19.2 RIGHT OF LANDLORD TO PERFORM COVENANTS. All covenants and
agreements to be performed by Tenant under any of the terms of this Lease shall
be performed by Tenant, at Tenant's sole cost and expense, and without any
abatement of Rent. If Tenant shall fail to perform any act on its part to be
performed hereunder, Landlord may (but shall not be obligated to) perform such
act without waiving or releasing Tenant from any of its obligations relative
thereto. All sums paid or costs incurred by Landlord in so performing such acts
under this Article 19.2, together with interest thereon at the rate set out in
Article 19.1 from the date each such payment was made or each such cost incurred
by Landlord, shall be payable by Tenant to Landlord on demand.
19.3 EVENTS OF DEFAULT. If and whenever:
(a) Part or all of the Rent hereby reserved is not paid when due;
or
(b) Tenant or any goods, chattels, security deposit or equipment
of Tenant is taken in execution or in attachment of if a writ of execution is
issued against Tenant; or
(c) Tenant becomes insolvent or commits an act of bankruptcy; or
(d) A receiver shall be appointed for the business, property,
affairs, or revenues of Tenant; or
(e) Tenant assigns this Lease or subleases the Premises without
obtaining Landlord's consent; or
(f) Tenant abandons the Premises or any portion thereof; or
(g) Tenant does or permits anything to be done which creates a
lien upon the Premises, and fails to cause a lien to be removed within thirty
(30) days; or
(h) Tenant fails to observe, perform and keep each and every one
of the covenants, agreements, provisions, stipulations and conditions herein
contained to be observed, performed and kept by Tenant (other than payment of
Rent) and persists in such failure after ten (10) days notice by Landlord
requiring that Tenant remedy, correct, desist or comply, or if any such breach
would reasonably require more than ten (10) days to rectify, unless Tenant
commences rectification within the 10-day notice period and cures the subject
failure within (30) days front the fate of notice;
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(i) Without Landlord approval, Tenant transfers, sells or conveys
a voting or ownership interest in Tenant which results in the loss of Guarantors
effective voting control over Tenant;
then and in any of such cases, at the option of Landlord, the Tenant
shall be in default of this Lease.
19.4 LANDLORD'S REMEDIES UPON DEFAULT. Upon the occurrence of any event
of default, Landlord shall have the option to pursue any one or more of the
following remedies without notice or demand whatsoever:
(a) Give Tenant written notice of intent to terminate this Lease
on the date of such notice or on any later date as may be specified therein,
whereupon Tenant's right to possession of the Premises shall cease and this
Lease, except as to Tenant's liability, shall be terminated. In the event this
Lease is terminated in accordance with the provisions of this subparagraph,
Tenant shall remain liable to Landlord for damages in an amount equal to the
Rent, any sums owing by Tenant pursuant to the Conversion Note, any deferred
unpaid Rent as provided in Section 3.1 above, and other sums which would have
been owing by Tenant hereunder for the balance of the Term had this Lease not
been terminated, less the net proceeds, if any, of any reletting of the Premises
by Landlord subsequent to such termination, after deducting all Landlord's
reasonable expenses including, without limitation, all repossession costs,
brokerage commissions, legal expenses, attorney's fees, expenses of employees,
alteration and repair costs and expenses of preparation for such reletting.
Landlord shall be entitled to collect such damages from Tenant monthly on the
days on which the Rent and other charges would have been payable hereunder if
this Less, had not been terminated. Alternatively, at the option of the
Landlord, in the event this lease is so terminated, Landlord shall be entitled
to recover forthwith against Tenant as damages for loss of the bargain and not
as a penalty an aggregate sum, which at the time of such termination of this
Lease, represents the excess, if any, of the aggregate of the Rent and all other
charges payable by Tenant hereunder that would have accrued for the balance of
the Term over the aggregate fair market rental value of the Premises (such
rental value shall pertain to the occupation of the Premises, but also such
other charges as are required to be paid by Tenant under the terms of this
Lease) for the balance of such Term, both discontinued to present worth.
(b) Reenter and take possession of the Premises or any part
thereof, and repossess the same as of Landlord's former estate and expel Tenant
and those claiming through and under Tenant, and remove the effects of both or
either, using such force for such purposes as may be necessary, without being
liable for prosecution thereof, without being deemed guilty of any manner of
trespass, and without prejudice to any remedies for arrears of Rent or preceding
breach of covenants or conditions. Should Landlord elect to reenter as provided
in this subparagraph, or should Landlord elect to take possession pursuant to
legal proceedings or pursuant to any notice provided for by law, Landlord may,
from time to time, without terminating this Lease, relet the Premises or any
part thereof in Landlord's or Tenant's name, but for the account of Tenant, for
such Term or Terms (which may be greater or less than the
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period which would otherwise have constituted the balance of the Term of this
Lease) and on such conditions and upon other Terms (which may include
concessions of free Rent and alteration and repair of the Premises) as Landlord,
in its sole discretion, may determine, and Landlord may collect and receive the
Rents therefor. Landlord shall in no way be responsible or liable for any
failure to relet the Premises, or any part thereof, or for any failure to
collect any Rent due upon such reletting, except than Tenant does not hereby
waive any defense which Tenant may have for Landlord's failure to mitigate its
damages. No such reentry or taking possession of the Premises by Landlord shall
be construed as an election on Landlord's part to terminate this Lease unless a
written notice of such intention is given to Tenant. No notice from Landlord
hereunder or under a forcible entry and detainer statute or similar law shall
constitute an election by Landlord to terminate this Lease unless such notice
specifically so states. Landlord reserves the right following any such reentry
and/or reletting to exercise its right to terminate this Lease by giving Tenant
such written notice, in which event the Lease will terminate as specified in
said notice.
In the event that Landlord does not elect to terminate this Lease but takes
possession as provided for in this subparagraph, Tenant shall pay Landlord (i)
the Rent and other charges as herein provided which would be payable hereunder
if such repossession had not occurred, less (ii) the net proceeds, if any, of
any reletting of the Premises after deducting all Landlord's reasonable expenses
including, without limitation, all repossession costs, brokerage commissions,
legal expenses, attorney's fees, expenses of employees, alteration and repair
costs and expenses of preparation for such reletting. Tenant shall pay such Rent
and other sums to Landlord monthly on the days on which the Rent would have been
payable hereunder if possession had not been retaken.
19.5 WAIVER OF EXEMPTION AND REDEMPTION. Tenant hereby expressly waives
any and all rights of redemption granted by or under any present or future laws
in the event of Tenant being evicted or dispossessed for any cause, or in the
event of Landlord obtaining possession of the premises, by reason of the
violation by Tenant of any of the terms or conditions of this Lease or
otherwise.
19.6 REMEDIES CUMULATIVE. No reference to nor exercise of any specific
right or remedy by Landlord shall prejudice or preclude Landlord from exercising
or invoking any other remedy in respect thereof, whether allowed at law or in
equity or other such remedy, but Landlord may from time to time exercise any one
or more of such remedies independently or in combination.
19.7 FEES AND COSTS. In the event of default by either party that
results in litigation, the prevailing party shall be entitled to an award of its
reasonable attorney's fees and litigation expenses in addition to whatever
rights are contained within this Lease.
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ARTICLE XX
SUBORDINATION
20.1 SUBORDINATION
(a) This Lease, at Landlord's option, shall be subordinate to any
mortgage or deed of trust (now or hereafter placed upon the Premises, or any
portion thereof), including any amendment, modification, or restatement of any
of such documents and to any and all advances made under any mortgage or deed of
trust and to all renewals, modifications, consolidations, replacements, and
extensions thereof. Tenant agrees that with respect to any of the foregoing
documents, no documentation, other than this Lease, shall be required to
evidence such subordination.
(b) If any holder of a mortgage or deed of trust ("Mortgagee")
shall elect to have this Lease superior to the lien of the holder's mortgage or
deed of trust and shall give written notice thereof to Tenant, this Lease shall
be deemed prior to such mortgage or deed of trust, whether this Lease is dated
prior or subsequent to the date of said mortgage or deed of trust, or the date
of recording thereof.
(c) In confirmation of such subordination or superior position,
as the case may be, Tenant agrees to execute such documents as may be required
by Landlord or its Mortgagee to evidence the subordination of its interest
herein to any of the documents described above, or to make this Lease prior to
the lien of any mortgage or deed of trust, as the case may be, and failing to do
so within ten (10) days after written demand, Tenant does hereby make,
constitute and irrevocably appoint Landlord as Tenant's attorney-in-fact and in
Tenant's name, place and stead, to do so.
ARTICLE XXI
MISCELLANEOUS
21.1 RELATIONSHIP OF PARTIES. Noting contained in this Lease shall
create any relationship between the parties hereto other than that of landlord
and tenant, and it is acknowledged and agreed that Landlord does not in any way
or for any purpose become a partner of Tenant in the conduct of its business, or
a joint venturer or a member of a joint or common enterprise with Tenant.
21.2. NAME OF BUILDING. Landlord shall have the right, after thirty
(30) days notice to Tenant, to designate or change the name or number of the
Building during the Term without liability to Tenant.
21.3 APPLICABLE LAW AND CONSTRUCITON. This Lease shall be governed by
and construed under the laws of the State of Colorado and its provisions shall
be construed as a whole according to their common meaning and not strictly for
or against Landlord or Tenant. The words "Landlord" and "Tenant" shall include
the plural as well as the singular. If this Lease is executed by more than one
Tenant, Tenant's obligations hereunder shall be joint and several obligations of
such executing Tenants. Time is of
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the essence of this Lease and each of its provisions. The captions of the
Articles are included for convenience only, and shall have no effect upon the
construction or interpretation of this Lease.
21.4 ENTIRE AGREEMENT. This Lease, together with its Exhibits and such
Rules and Regulations presently in effect, comprise the entire agreement between
the parties hereto with respect to the subject matter of this Lease. Tenant
acknowledges and agrees that it has not relied upon any statement,
representation, agreement or warranty except such as are set out in this Lease.
21.5 AMENDMENT OR MODIFICATION. Unless otherwise specifically provided
in this Lease, no amendment, modification, or supplement to this Lease shall be
valid or binding unless set out in writing and executed by the parties hereto in
the same formality and manner as the execution of this Lease.
21.6 CONSTRUED COVENANTS AND SEVERABILITY. All of the provisions of
this Lease are to be construed as independent covenants and agreements as though
the words importing such independent covenants and agreements were fixed in each
separate Article hereof. Should any provision of this Lease be or become
invalid, void, illegal or not enforceable, it shall be considered separate and
severable from the Lease and the remaining provisions shall remain in force and
be binding upon the parties hereto as though such provision had not been
included.
21.7 NO IMPLIED SURRENDER OR WAIVER. No provisions of this Lease shall
be deemed to have been waived by Landlord unless such waiver is in writing
signed by Landlord. Landlord's waiver of a breach of any term or condition of
this Lease shall not prevent a subsequent act, which would have originally
constituted a breach, from having all the force and effect of any original
breach. Landlord's receipt of Rent with knowledge of a breach by Tenant of any
term or condition of this Lease shall not be deemed a waiver of such breach even
in the absence of a protest or reservation of rights. Landlord's failure to
enforce against Tenant or any other tenant in the Building any of the Rules and
Regulations made hereunder shall not be deemed a waiver of such Rules and
Regulations. No act or thing done by Landlord, its agents or employees during
the Term shall be deemed an acceptance of a surrender of the Premises, and no
agreement to accept a surrender of the Premises shall be valid, unless in
writing signed by Landlord. The delivery of keys to any of Landlord's agents or
employees shall not operate as a termination of this Lease or a surrender of the
Premises. No payment by Tenant, or receipt by Landlord, or a lesser amount than
the Rent due hereunder shall be deemed to be other than on account of the
earliest stipulated Rent, nor shall any endorsement or statement on any check or
any letter accompanying any checks, or payment as Rent, be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such Rent or pursue any other remedy
available to Landlord.
21.8 SUCCESSORS BOUND. Except as otherwise specifically provided, the
covenants, terms, and conditions contained in this Lease shall apply to and bind
the heirs, successors, executors, administrators, and assigns of the parties
hereto.
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21.9 TENANT'S PRIOR LESSORS. Tenant represents and warrants that
Landlord did not engage in any act or representation that might cause any third
party, including but not limited to any of Tenant's former landlords or lessors,
to make or assert any type of claim against Landlord herein, as a result of
Tenant entering into this Lease agreement. Tenant shall indemnify, defend and
hold harmless Landlord from and against any claims by any of Tenant's former
landlords or lessors. For purposes of this section, Tenant shall include any
predecessor corporations or business entities, sublessees, related companies or
any business entity in which the Tenant had any type of legal or equitable
interest.
IN WITNESS HEREOF, Landlord and Tenant have properly executed this Lease as of
the 8th day of January, 2002.
LANDLORD: TENANT:
Alpen Construction & Development Co., V2K Window Fashions, Inc.
Inc.
a Colorado corporation a Colorado corporation
By: /s/ By: /s/ Xxxxxx Xxx
--------------------------------- ----------------------------------
Title: President Title: CTO
------------------------------ ------------------------------
Date: 1-18-02 Date: January 8, 2002
------------------------------- -------------------------------
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EXHIBIT A
LEASE SUMMARY
1. Tenant Name and Address V2K Window Fashions, Inc., a Colorado
corporation
---------------------------------------------
---------------------------------------------
2. Building Name and Address
---------------------------------------------
0000 Xxxxxxx Xxxxxxx
Xxxxxx, XX, 00000
3. Suite Number
---------------------------------------------
4. Rentable Area 4,000 rentable square feet
5. Term of Lease Five 5 years from Commencement Date through
February 28, 2007
6. Base Rent
Annual
Annual Annual Deferred
Base Rent Cash Payment Base Rent
Year 1 $76,000 48,000 28,000
Year 2 76,000 36,000 40,000
Year 3 76,000 48,000 28,000
Year 4 76,000 48,000 28,000
Year 5 76,000 60,000 16,000
$380,000 $240,000 $140,000
Annual Deferred Base Rent shall be secured by
the promissory note of even date herewith
made by Tenant for the benefit of Landlord,
and shall be payable, in cash or stock, on
the due date thereunder or the earlier
termination of this Lease.
7. Parking Spaces a) 1 indoor Parking Space, no additional
charge.
b) 7 Reserved Outdoor Parking Spaces, no
additional charge.
c) 5 Additional outdoor spaces @ $50 per
space per month or current market rate.
d) 10 Additional outdoor spaces, if
available, @ $50 per space per month or
current market rate.
A-1
Some or all of the additional outdoor spaces
may be located in the Pepsi Center parking
areas, and are not under the management or
control of Landlord.
The parking spaces referred to in (b) and (c)
above shall be available from 6 a.m. to 5:30
p.m. Tenant shall remain solely responsible
for the payment of any event parking rates
during other hours. Tenant acknowledges and
agrees that failure to immediately pay any
event parking rates or park vehicles within
designated parking markers or lines may
result in the removal of such vehicles from
the area by Landlord, the City and County of
Denver or other third parties, without any
resulting liability to Landlord.
8. Landlord Name and Address Alpen Construction & Development Co. Inc.
0000 Xxxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000-0000
Phone: 000-000-0000
Fax: 000-000-0000
9. Commencement Date May 1, 2002
10. Total Rentable Area of 4,000 square feet
Building
11. Fiscal Year Calendar year or such other fiscal year as
Landlord may from time to time determine
12. Charge for After Hours $40.00 per hour
Services
13. Other Provisions a) Renewal Option:
As additional consideration for covenants of
the Tenant hereunder, Landlord does hereby
grant unto Tenant an Option ("the Option") to
extend the Term of the Lease for one (1)
additional term of five (5) years (the
"Option Term"). The Option shall apply to the
space leased by Tenant hereunder at the time
of the exercise of the Option and shall be on
the following terms and
A-2
conditions:
1. Written notice of Tenant's interest in
exercising the Option shall be given to
Landlord no earlier than nine (9) months
and no later than six (6) months prior to
the expiration of the original Lease Term
("Tenant's Notice"). Not later than thirty
(30) days after receiving Tenant's Notice,
Landlord shall give to Tenant notice of
the terms, conditions and rental rate
applicable during the Option term, in
accordance with subparagraph 5 below
("Landlord's Notice").
2. Tenant shall have thirty (30) days
following Tenant's receipt of Landlord's
Notice within which to negotiate with
Landlord in good faith a mutually
acceptable market rate and exercise the
Option by delivering written notice of
such exercise to Landlord under the terms,
conditions and rental rate payable in cash
only set forth in Landlord's Notice. If
Tenant timely exercises the Option, the
Lease shall be deemed extended and
thereafter the parties shall execute an
amendment to the Lease setting forth the
terms of the extension.
3. Unless Landlord is timely notified by
Tenant in accordance with subparagraphs 1
and 2 above, it shall be conclusively
deemed that Tenant does not desire to
exercise the Option, and the Lease shall
expire in accordance with its terms, at
the end of the Term.
4. Tenant's right to exercise its Option
shall be conditioned on: (i) Tenant not
being in default under the Lease at the
time of the exercise of the Option or at
the time of the commencement of the Option
Term; (ii) Tenant not having subleased
more than twenty-five percent (25%) of the
Premises or assigned its interest under
the Lease as
A-3
of the commencement of the Option Term or
having vacated more than twenty-five (25%)
of the Premises; (iii) Landlord not being
burdened or obligated in any way with
costs related to any Broker's
representation of Tenant's interest in any
way; (iv) Tenant's use of the Premises not
having changed in any way from the use at
the time the Lease was executed; (v) Upon
Landlord's option, the repurchase of any
stock of Tenant issued to Landlord
pursuant to this Lease in an amount not
less than Two and no/100 Dollars ($2.00)
per share.
5. The Option granted hereunder shall be
upon the terms and conditions contained in
the Lease except that the Base Rent to be
paid by Tenant to Landlord during the
Option Term (provided no brokerage fees
are payable by Landlord to any broker
representing Tenant's interest in any way)
shall be the rate which Landlord would
quote to third parties for space
comparable to the Premises, if it were to
become available far leasing, for a lease
term scheduled to commence at the time of
commencement of the Option Term, but in no
event shall the Base Rent be less than the
Rent which Tenant is paying immediately
prior to the commencement of the Option
Term.
6. After exercise of or failure to timely
exercise the Option above described
according to its terms, there shall be no
farther rights on the part of Tenant to
extend the term of the Lease.
b) Right of First Refusal:
Landlord hereby grants Tenant a continuous
Right of First Refusal ("Right of First
Refusal") effective through Term of Lease to
lease or purchase the remainder of the first
and second floors of the Building, marked on
Exhibit
A-4
B of the Lease as "Right of First Refusal
Space", on the following terms and
conditions:
1. If Landlord receives or proffers an
offer ("The Offer") to lease any of the
Right of First Refusal Space during the
initial Term, Landlord shall give Tenant
two (2) business days written notice
thereof ("Offering Notice").
2. The Offering Notice shall constitute an
offer to lease the Right of First Refusal
Space to Tenant in preference to the
proposed Tenant upon the same terms and
conditions provided in The Offer,
including lease term, except that the term
will be coterminous with Tenant's existing
Lease Term if such existing Tem is longer.
3. If Tenant elects to exercise its Right
of First Refusal, it shall do so by giving
written notice to Landlord of its exercise
within said two (2) business day period.
4. Unless Landlord is timely notified of
Tenant's exercise of its Right of First
Refusal, it shall be conclusively deemed
that the Tenant does not desire to
exercise its Right of First Refusal.
5. The Right of First Refusal Space shall
be taken in an "as-is" condition; without
any remodeling or fix-up work, except as
may be provided in the Offering Notice.
6. The Right of First Refusal shall not
apply and shall become null and void and
of no further force and effect at any time
should Tenant be in default of the Lease;
when more than twenty-five percent (25%)
of the Premises shall be sublet or
assigned; if Tenant is represented by a
broker; if Tenant's use of the Premises
has changed in any way from the use at the
time the Lease was executed.
A-5
7. Landlord shall not be liable to Tenant,
in the event of its good faith failure to
comply with the notice provisions of
Paragraphs 1 and 8 above.
c) Tenant Improvements:
Landlord shall construct, through Landlord's
contractor, Space Plan improvements pursuant
to Exhibit D hereto. Schedule 1 of Exhibit D
shall be appended to the Lease upon
completion of a mutually agreeable Space Plan
(the "Space Plan"). Construction of the
improvements shall be subject to the terms
and conditions of the Lease and Landlord's
approval of the final Space Plan, which
approval shall not be unreasonably withheld.
Except as described in Exhibit D, Tenant
accepts the Premises in their as-is
condition, and Landlord shall have no
obligation for any repairs or improvements
thereto.
A-6
EXHIBIT B
BUILDING FLOOR PLAN
(to be inserted)
B-1
EXHIBIT C
RULES AND REGULATIONS
1. Security. Landlord may from time to time adopt appropriate systems and
procedures for the security or safely of the Building, any persons
occupying, using or entering the same, or any equipment, finishings or
contents thereof, and Tenant shall comply with Landlord's reasonable
requirements relative thereto.
2. Locks. Landlord may from time to time install and change locking
mechanisms on entrances to the Building, common areas thereof, and the
Premises, and (unless 24 hour security is provided by the Building)
shall provide to Tenant a reasonable number of keys and replacements
therefor to meet the bona fide requirements of Tenant. In these roles
"keys" include any device serving the same purpose. Tenant shall not
add to or change existing locking mechanisms on any door in or to the
Premises, without Landlord's prior written consent. If with Landlord's
consent. Tenant installs lock(s) included within and not accessible by
using the Building master locking system:
(a) Landlord, without abatement of Real, shall be relieved of any
obligation under the Lease to provide any service to the
affected areas which requires access thereto;
(b) Tenant shall indemnify Landlord against any expense as a
result of forced entry thereto which may be required in an
emergency; and
(c) Tenant shall at the end of the Term and al Landlord's request
remove such lock(s) at Tenant's expense.
3. Return of Keys. At the end of the Term, Tenant shall return all keys
to Landlord.
4. Windows. Tenant shall observe Landlord's rules with respect to
maintaining uniform drapes at all windows in the Premises so that the
Building presents a uniform exterior appearance, and shall not install
any window shades, screens, drapes, covers or other materials on or at
any window in the Premises without Landlord's prior written consent.
5. Repair, Maintenance, Alterations and Improvements. Tenant shall carry
out Tenant's repair, maintenance, alterations and improvements in the
Premises only during times agreed to in advance by Landlord and in a
insurer which will not interfere with the rights of other tenants in
the Building.
6. Water Fixtures. Tenant shall not use water fixtures for any purpose for
which they are not intended, nor shall water be wasted by tampering
with such fixtures. Any cost or damage resulting from such misuse by
Tenant shall be paid by Tenant.
C-1
7. Personal Use of Premises. The Premises shall not be used or permitted
to be used for residential, lodging or sleeping purposes or for the
storage of personal effects or properly not required for business
purposes.
8. Heavy Articles. Tenant shall not place in or move about the Premises
without Landlord's prior written consent any safe or other heavy
article which in Landlord's reasonable opinion may damage the Building,
and Landlord may designate the location of any heavy article in the
Premises.
9. Carpet Pads. In those portions of the properly where carpet has been
provided directly or indirectly by Landlord, Tenant shall of its own
expense install and maintain pad to protect the carpet under all immune
having casters other than carpet casters.
10. Bicycles, Animals. Tenant shall not bring any animals or birds into the
Building, and shall not permit bicycles or other vehicles inside or on
the sidewalks outside the Building except in areas designated from time
to time by Landlord for such purposes.
11. Deliveries. Tenant shall ensure that deliveries of materials and
supplies to the property are made through such entrances, elevators and
corridors and at such times as may from time to time be designated by
Landlord, and shall promptly pay or cause to be paid to Landlord the
cost of repairing any damage in the Building caused by any person
making such deliveries.
12. Furniture and Equipment. Tenant shall ensure that furniture and
equipment being moved into or out of the Premises is moved through such
entrances, elevators and corridors and at such times as may from time
to time be designated by Landlord, and by movers or a moving company
approved by Landlord, and shall promptly pay or cause to be paid to
Landlord the cost of repairing any damage in the Building caused
thereby.
13. Solicitations. Landlord reserves the right to restrict or prohibit
canvassing, soliciting or peddling in the Building.
14. Food and Beverages. Only persons approved from time to time by Landlord
may prepare, solicit orders for, sell, serve or distribute foods or
beverages in the Building, or use the elevators, corridors or common
areas for any such purposes. Except with Landlord's prior written
consent and in accordance with arrangements approved with Landlord,
Tenant shall not permit on the Premises the use of equipment for
dispensing food or beverages or for the preparation, solicitation of
orders for sale, serving or distribution of food or beverages.
15. Refuse. Tenant shall place all refuse in proper receptacles provided by
Tenant at its expense in the Premises or in receptacles (if any)
provided by Landlord for the Building, and shall keep sidewalks and
driveways outside the Building and lobbies, corridors stairwells ducts
or shafts of the Building free of all refuse.
C-2
16. Obstructions. Tenant shall not obstruct or place anything in or on the
sidewalks or driveways outside the Building or in the lobbies corridors
stairwells or other common areas of the Building or use such locations
for any purpose except access to and exit from the Premises without
Landlord's prior written consent. Landlord may remove at Tenant's
expense any such obstruction or thing (unauthorized by Landlord)
without notice or obligation to Tenant.
17. Dangerous, Immoral or Illegal Activities. Tenant shall not make any use
of the premises which involves the danger or injury to any such person
nor shall the same be used for any immoral or illegal purpose.
18. Proper Conduct. Tenant shall not conduct itself in any manner which is
inconsistent with the character of the Building as a first quality
building or which will impair the comfort and convenience of other
tenants in the Building.
19. Employees, Agents and Invitees. In these Rules and Regulations "Tenant"
includes the employees agents invitees and licensees of Tenant and
others permitted by Tenant to use or occupy the Premises.
20. Normal Business Hours. Normal business hours for the Building shall be
from 6:00 a.m. to 6:00 p.m. Monday through Friday, and from 8:00 a.m.
to 2:00 p.m. on Saturday, excepting in any event, legal holidays.
Notwithstanding normal business hours for the Building, the
availability and hours of outdoor parking spaces at or in the vicinity
of the Building are available from 7:00 a.m. to 5:00 p.m. daily.
C-3
EXHIBIT D
WORK LETTER AGREEMENT
This Agreement supplements that certain Lease (hereinafter referred to as
"Lease") dated and executed concurrently herewith by and between Landlord and
Tenant with the terms defined in the Lease to have the same definition where
used herein.
1. Landlord will provide demised Premises in accordance with the Space
Plan attached hereto as Schedule 1 (the "Space Plan") at Landlord's
sole expense, except that Tenant shall pay for items, if applicable,
under Paragraphs 2, 3 and 5 below.
2. Landlord further agrees to perform, at Tenant's request, and upon
submission by Tenant of necessary plans and specifications, any
additional or Tenant specialization work over and above that specified
in Paragraph 1 above; such work shall be performed by Landlord, at
Tenant's sole expense, as a Tenant extra. Prior to commencing any such
additional work requested by Tenant, Landlord shall submit to Tenant a
written work order setting forth the cost of any such work. If Tenant
shall fail to approve such work order within five (5) working days, the
same shall be deemed disapproved in all respects by Tenant, and
Landlord shall not be obligated to proceed thereon. Tenant agrees to
pay Landlord promptly upon being billed for the costs and expenses for
such authorized additional or nonstandard excess work including
Landlord's cost, expense and overhead for handling the same. Tenant
agrees that the same shall be collectible as additional rent pursuant
to the Lease, and in default of payment hereof, Landlord shall (in
addition to all other remedies) have the same rights as in the event of
default of payment of any installment of the Base Rent.
A. All finished work shall require the installation of new
materials equal in quality to that installed in the Building.
B. Landlord or its agent may submit statements to Tenant for sums
due it hereunder prior to construction, fifty percent (50%) of
the amount of such statement being due and payable by Tenant
to Landlord upon presentation of the statement. The remainder,
together with any other additional amount due Landlord as a
result by Tenant change orders, shall be due and payable by
Tenant to Landlord at the time of Landlord's substantial
completion of the Premises.
3. Tenant may reasonably substitute material, equipment and fixtures
(except mechanical and electrical systems) for those specified in the
Space Plan only with Landlord's prior express written approval, which
approval may be withheld in Landlord's sole discretion. Any
substitution or changes must be shown on the working drawings and in
specifications and shall be of equal to or better quality
D-1
than the items originally designated. Tenant shall pay Landlord the
cost to Landlord for such substitute items which were in excess of such
items included as Landlord's standard installation plus the cost of any
changes to the working drawings and specifications. The cost to Tenant
for such substitutions shall be at Landlord's cost, including any
expense and overhead in the handling of the substitution, less a credit
for the substituted item of Landlord's standard installation. Tenant
may also request Landlord to omit the installation of any item not
already installed, provided such emission shall not erode the quality
of construction below Building standard or delay Landlord's work and
Landlord shall not thereafter be obligated to install the same. Tenant
shall not be entitled to any credit for such item omitted against any
additional item of a different kind or character, or shall there be any
cash credits.
4. It is agreed that, notwithstanding the date provided in the Lease for
the commencement hereof, Tenant's obligation for the Payment of Rent
under the Lease shall not commence until Landlord shall have
substantially completed all work to be performed by Landlord set forth
in Paragraph 1 hereof; provided, however, that if Tenant's occupancy
and use of the Premises shall be delayed as a result of
A. Tenant's failure to comply with provisions of Paragraphs 2 and
3 hereof;
B. Tenant's request for materials, finishes or installations
other than as specified on the Space Plan;
C. Tenant's changes in the approved drawings;
D. The performance by a person, firm or corporation employed by
Tenant and the completion of said work by the said person,
firm or corporation; or
E. Any other delay chargeable to Tenant, its agents, employees or
independent contractors;
then the commencement of the terms of the Lease and the payment of rent
thereunder shall commence, notwithstanding any contrary provisions of
the Lease, on the express Commencement Date as set forth in Article 2
of the Lease.
5. If Tenant shall request any change, addition or alteration in working
drawings after approval by Landlord and Tenant, Landlord shall have
such working drawings prepared, and Tenant shall promptly reimburse
Landlord for the cost thereof. Promptly upon completion of revisions,
Landlord shall notify Tenant in writing of the cost which will be
chargeable to Tenant by reason of such change, addition or deletion.
Tenant shall, within three (3) business days, notify Landlord in
writing whether it desires to proceed with such change, addition or
deletion, and, in the absence of such written authorization, Landlord
shall not be obligated
D-2
to continue work on Tenant's Premises, Tenant shall be chargeable wish
any delay in completion of the Premises resulting therefrom and rent
shall commence to accrue as set forth in Paragraph 4 above.
IN WITNESS WHEREOF, the parties have executed this Work Letter Agreement this 8
day of January 2002.
LANDLORD: TENANT:
Alpen Construction & Development Co., Inc. V2K Window Fashions, Inc.
a Colorado corporation a Colorado corporation
By: /s/ unknown signature By: /s/ Xxxxxx Xxx
-------------------------------------- -------------------------------
Title: President Title: CTO
---------------------------------- ---------------------------
Date: 1/18/02 Date: January 8, 2002
----------------------------------- ----------------------------
D-3
ALPEN CONSTRUCTION & DEVELOPMENT CO. INC.
0000 Xxxxxxxx Xx. Phone: 000-000-0000
Xxxxxx, XX 00000-0000 Fax: 000-000-0000
================================================================================
DATE: 1/4/01
TO: Xxxx
FROM: Xxxx
Re: REVISED 12/28/01 estimates for V2K office space build-out @ 0000 Xxxxxxx
Xxxx
I had a conversation with Xxxx on 12/21/01 regarding a more detailed
spec on the following items listed below. If this meets your approval, Xxxx
requested a copy ASAP.
Xxxx had also mentioned that this was the last detail resolve needed
before signing the lease contract.
1. Bathroom and break room/entry foyer flooring:
12X12 floor tile, Piazza by Marazzi Ceramica. Material cost of tile
approx. $2.60/pc.
Color has not been selected.
8X8 ceramic by Daltile. Material cost of tile approx. $.82/pc. Color has
not been selected.
2. Bathroom will tile boarder:
6X6 Ceramic by Daltile. Material cost of tile approx. $.72/pc.
3. Office, open space, training room, conference room and storage room
flooring:
Commercial level loop carpet (26 oz.) with graphic design, installed over
3/8" 8lb. high density pad. Southwest carpet xxxxx or equivalent.
$17 per yd. installed.
4. Showroom flooring:
1"X3" tongue and groove Xxxxxxx fir wood floor with natural gloss finish.
Approx. installed cost $5 per sq. ft.
5. Office doors:
Birch hollow core. Approx. material cost $35 per door.
6. Office door passages:
Lock passage, Kwikset, Tylo hall/closet SC, approx. Material cost $15
each.
7. Wall molding to be wood. Type has not been selected.
8. Break room cabinet by Grandview, maple finish with shaker panels.
9. Office lighting:
4x2 florescent troughers in offices, open space, baths and storage room.
Upgrade Peerless indirect/direct chrome lights in open space area (with
natural light lamps in showroom). Additional $2500
(NOTE: This system may not have the sufficient candle power needed)
Credit: $1100 for Tenant supplied lighting in the open space area.
EXHIBIT D
EXHIBIT E
GUARANTY
THIS GUARANTY is given as of this 18th day of December, 2001, by Xxxxxx
X. Xxxxx, Xxxxxx Xxx, X.X. Xxxxxxxxxxx and Xxxxxx Xxxxxxxxx, individual(s)
(hereinafter referred to as "Guarantor").
WITNESSETH:
WHEREAS, Landlord is willing to execute that certain Lease Agreement
(the "Lease") dated 12/18/01, between Landlord and Tenant pertaining to
approximately _________ rentable square feel of space (final Premises area to be
determined by Space Plan) at the Building to be known as Suite Number _____ (the
"Premises") on condition of receiving the Guaranty from the Guarantor as herein
contained. Any undefined terms in this Guaranty shall be as defined in the
Lease.
NOW, THEREFORE, for and in consideration of leasing the Premises by the
Landlord to Tenant in accordance with the terms and provisions of the Lease,
which Lease is executed concurrently herewith, and for other good and valuable
considerations, the receipt and sufficiency of which are hereby acknowledged by
the Guarantor, Guarantor shall be defined in the Lease;
NOW, THEREFORE, for and in consideration of leasing the Premises by the
Landlord to Tenant in accordance with the terms and provisions of the Lease,
which Lease is executed concurrently herewith, and for other good and valuable
considerations, the receipt and sufficiency of which are hereby acknowledged by
the Guarantor, Guarantor hereby agrees as follows:
1. Guarantor hereby, jointly and severally, unconditionally and
irrevocably guarantees the prompt and faithful performance of all of the terms
and provisions of the Lease by Tenant and any assignee of Tenant, any payments
or obligations related to the Conversion Note and Tenant's share of common
element expenses; provided, however, Guarantor's total liability pursuant to the
terms of this Guaranty shall in no event exceed the aggregate amount of One
Hundred Thousand and No/100 Dollars ($100,000). Guarantor's liability under the
terms of this Guaranty shall terminate upon Tenant's payment of the first One
Hundred Thousand and No/100 Dollars ($100,000) of Base Rent, in good funds, to
Landlord. Guarantor expressly waives any notice of default in or under any of
the terms of the Lease, notice of acceptance of this Guaranty, and all setoffs
and counterclaims; provided, however, Guarantor shall be given the same right to
cure Tenant's default as that afforded Tenant under the Lease.
2. It is specifically understood and agreed that, in the event of a
default by Tenant of the terms and provisions of the Lease and after the
expiration of any applicable grace period, Landlord shall be entitled to
commence any action or proceeding against the Guarantor or otherwise exercise
any available remedy at law or in equity to enforce the provisions of this
Guaranty without first commencing any action available or otherwise proceeding
against Tenant or otherwise exhausting any or all of its available remedies
against Tenant, it being expressly agreed by the undersigned that its liability
under this Guaranty shall be primary. Landlord may maintain successive actions
for other defaults. Its rights hereunder shall not be exhausted by its exercise
of any of its
E-1
rights or remedies or by any such action or by any number of successive actions,
until and unless all obligations hereby guaranteed have been paid and fully
perforated.
3. In the event that any action be commenced by Landlord to enforce the
provisions of this Guaranty, Landlord shall be entitled, if it shall prevail in
any such action or proceeding, to recover from Guarantor all reasonable costs
incurred in connection therewith, including reasonable attorneys' fees.
4. No payment by Guarantor shall entitle Guarantor under any
obligations owed by Tenant to Guarantor, by subrogation or otherwise, to any
payment by Tenant under or out of the property of the Tenant, including
specifically, but not limited to, the revenues derived from the Premises.
5. Guarantor acknowledges that Guarantor is financially interested in
Tenant.
6. This Guaranty shall incur to the benefit of Landlord, its heirs,
personal representatives, successors, and assigns and shall be binding upon the
heirs, personal representatives, successors, and assigns of the Guarantor.
7. The liability of the Guarantor hereunder shall in no way be affected
by, and Guarantor expressly waives any defenses that may arise by reason of, (a)
the proceedings; (b) the impairment, limitation or modification of the liability
of the Tenant or the estate of the Tenant in bankruptcy, or of any remedy for
the enforcement of the Tenant's said liability under the Lease, resulting from
the operation of any present or future prevision of the National Bankruptcy Act
or other statute or from the decision in any court; (c) the rejection of
disaffirmance of the lease in any such proceedings; (d) the modification,
assignment or transfer of the lease by the Tenant; or (e) any disability or
other defense of the Tenant.
8. Guarantor agrees that in the event Tenant shall become insolvent or
shall be adjudicated a bankrupt, or shall file a petition for reorganization,
arrangement, or similar relief under any present or future provisions of the
Federal Bankruptcy Code, or any similar law or statute of the United Slate or
any Stale thereof, or if such a petition filed by creditors of Tenant shall be
approved by a Court, or if Tenant shall seek a judicial readjustment of the
rights of its creditors under any present or future Federal or Stale law or if a
receiver of all or part of its property and assets is appointed by any State or
Federal court:
(a) If the Lease shall be terminated or rejected, or the
obligations of Tenant thereunder shall be modified, Landlord shall have the
option either (i) to require the undersigned, and the undersigned hereby so
agrees, to execute and deliver to Landlord a new lease as tenant for the balance
of the term then remaining as provided in the Lease and upon the same terms and
conditions as set forth therein, or (ii) to recover from the undersigned that
which Landlord would be entitled to recover from Tenant under the Lease in the
event of a termination of the Lease by Landlord because
E-2
of a default by Tenant, and such shall be recoverable from the undersigned
without regard to whether Landlord is entitled to recover the same from Tenant
in any such proceeding.
(b) If any obligation under the Lease is performed by Tenant
and all or any part of such performance is avoided or recovered from Landlord as
a preference, fraudulent transfer or otherwise, in any bankruptcy, insolvency,
liquidation, reorganization or other proceeding involving Tenant, the liability
of Guarantor under this Guaranty shall remain in full force and effect.
(c) In the event Guarantor has a claim against Tenant, whether
in administration, bankruptcy or otherwise, the person or persons authorized to
pay such claim shall pay to Landlord the full amount thereof, and, to the full
extent necessary for that purpose, Guarantor hereby assigns to Landlord all of
Guarantor's rights to any such payments or distributions to which Guarantor
would otherwise by entitled to the extent of Guarantor's obligation under this
Guaranty.
9. This Guaranty shall be enforced in accordance with the laws of the
State of Colorado and shall be deemed executed in the City and County of Denver,
State of Colorado. Guarantor hereby constants; to and submits to the
jurisdiction of the federal and state courts located in the State of Colorado
and any action or suit under this Guaranty by Guarantor shall only be brought in
the federal or state court with appropriate jurisdiction over the subject matter
established or sitting in the State of Colorado. Guarantor shall not raise, in
connection with any action or suit under the Guaranty, and hereby waives any
defenses based on the venue, inconvenience of the forum, lack of personal
jurisdiction, the sufficiency of service of process or the like in any such
action or suit brought in the State of Colorado.
Executed to be effective as of the date first above written.
/s/ XXXXXX X. XXXXX /s/ XXXXXX XXX
--------------------------------- ----------------------------------
Xxxxxx X. Xxxxx Xxxxxx Xxx
/s/ X. X. XXXXXXXXXXX /s/ XXXXXX XXXXXXXXX
--------------------------------- ----------------------------------
X. X. Xxxxxxxxxxx Xxxxxx Xxxxxxxxx
E-3
STATE OF COLORDO )
) ss.
COUNTY OF JEFFERSON )
The foregoing instrument was acknowledged before me this 18th day of Jan, 2002,
by Xxxxxx Xxxxx - XX Xxxxxxxxxxx - Xxxxxx Xxx - Xxxxxx Xxxxxxxxx
Witness my hand and official seal
My commission expires: May 2 - 04
----------------------
/s/ XXXXX X. XXX
----------------------------------
Notary Public
STATE OF COLORDO )
) ss.
COUNTY OF JEFFERSON )
The foregoing instrument was acknowledged before
me this ______ day of _________, 2001, by
________________________________________
Witness my hand and official seal
My commission expires:
________________________________________
Notary Public
STATE OF COLORDO )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before
me this ______ day of _________, 2001, by
________________________________________
Witness my hand and official seal
My commission expires:
________________________________________
Notary Public
E-4
STATE OF COLORDO )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before
me this ______ day of _________, 2001, by
________________________________________
Witness my hand and official seal
My commission expires:
________________________________________
Notary Public
E-5
THE SECURITIES REPRESENTED BY THIS NOTE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT") OR APPLICABLE STATE SECURITIES LAWS (THE
"STATE ACTS"), AND SHALL NOT BE SOLD, PLEDGED, HYPOTHECATED, DONATED, OR
OTHERWISE TRANSFERRED (WHETHER OR NOT FOR CONSIDERATION) BY THE LENDER EXCEPT
UPON THE ISSUANCE TO THE CORPORATION OF A FAVORABLE OPINION OF ITS COUNSEL OR
SUBMISSION TO THE CORPORATION OF SUCH OTHER EVIDENCE AS MAY BE SATISFACTORY TO
COUNSEL FOR THE CORPORATION, TO THE EFFECT THAT ANY SUCH TRANSFER SHALL NOT BE
IN VIOLATION OF THE ACT AND THE STATE ACTS.
V2K WINDOW FASHIONS, INC.
$140,000.00* [Date}
V2K WINDOW FASHIONS, INC., a Colorado corporation (the "Corporation"),
is indebted and, for value received, promises to pay to the order of Alpen
Construction & Development Co. Inc. (the "Lender") five years from the date
hereof or as further provided below (the "Due Date"), upon presentation of this
Note, the principal sum up to One Hundred Forty Thousand Dollars ($140,000.00)
(the "Principal Amount") without interest.
*The principal shall be the accrued deferral of rent payments of that
certain lease dated ________ by and between Alpen Construction & Development Co.
Inc., and V2K Window Fashions, Inc., tenant of certain premises located at 0000
Xxxxxxx Xxxxxxx, Xxxxxx, XX 00000, hereafter the ("Lease") as follows:
YEAR ANNUAL RENT CASH PAYMENT *CONVERSION DEFERRAL (# OF SHARES)
1 $76,000 $48000 $28,000 14,000
2 76,000 36,000 40,000 20,000
3 76,000 48,000 28,000 14,000
4 76,000 48,000 28,000 14,000
5 76,000 60,000 16,000 8,000
TOTALS $380,000 $240,000 $140,000 70,000
Lender shall have the right, at Lender's option, to convert all or any
part of this Note into shares of the Corporation's Common Stock at the rate of
$2.00 per share (the "Conversion Price") within thirty (30) days prior to the
Due Date. Lender may exercise the conversion right by giving written notice (the
"Conversion Notice") to the Corporation of the exercise of such right and
stating the name or names in which the stock certificate or stock certificates
for the shares of Common Stock are to be issued and the address to which such
certificates shall be delivered. The Conversion Notice shall be accompanied by
the Note. The number of shares of Common Stock that shall be issuable upon
conversion of the Note shall equal the principal amount of the Note to be
converted divided by $2.00.
Conversion shall be deemed to have been effected on the date the
Conversion Notice is given (the "Conversion Date"). Within 10 business days
after receipt of the Conversion Notice, the
Promissory Note - Page 1 of 3
Corporation shall issue and deliver by hand against a signed receipt therefor or
by United States registered mail, return receipt requested, to the address
designated by Lender in the Conversion Notice, a stock certificate or stock
certificates of the Corporation representing the number of shares of Common
Stock to which Lender is entitled.
In case issued and outstanding shares of Common Stock shall be
subdivided or split up into a greater number of shares of the Common Stock, the
Conversion Price shall be adjusted appropriately. In case of any capital
reorganization, any reclassification of the stock of the Corporation (other than
as a result of a stock dividend or subdivision, split up or combination of
shares), or the merger of the Corporation with or into another person or entity
(other than a merger in which the Corporation is the continuing corporation and
which does not result in any change in substantially all of the properties and
assets of the Corporation as an entirety or the participation by the Corporation
in share exchange as the corporation the stock of which is to be acquired, this
Note shall (effective on the opening of business on the date after the effective
date of such reorganization, reclassification, merger, sale or exchange, lease,
transfer or other disposition or share exchange) be convertible into the kind
and number of shares of stock or other securities or property of the Corporation
or of the corporation resulting from surviving such merger or to which such
properties the corporation whose securities were exchanged for those of the
Corporation to which Lender of the number of shares of Common Stock deliverable
(at the close of business on the date immediately preceding the effective date
of such reorganization, reclassification, merger, sale, exchange, lease,
transfer or other disposition or share exchange) upon conversion of this Note
would have been entitled upon such reorganization, reclassification, merger,
sale, exchange, lease, transfer or other disposition or share exchange.
The Corporation shall at all times reserve and keep available, free
from preemptive rights, unissued or treasury shares of Common Stock sufficient
to effect the conversion of this Note.
The unredeemed and deferred only balance of the Principal Amount as set
forth above shall, at the election of Lender, be and become immediately due and
payable upon the occurrence of any of the following events (a "Default Event"):
(a) If the Corporation (i) applies for or consents to the
appointment of, or if there shall be a taking of possession by,
a receiver, custodian, trustee or liquidator for the Corporation
or any of its property; (ii) becomes generally unable to pay its
debts as they become due; (iii) makes a general assignment for
the benefit of creditors or becomes insolvent; or (iv) files or
is served with any petition for relief under the Bankruptcy Code
or any similar federal or state statute.
(b) Any failure by the Corporation to issue and deliver shares of
Common Stock as provided herein upon conversion of this Note.
(c) The termination of the Lease pursuant to its terms.
Promissory Note - Page 2 of 3
Each right, power or remedy of Lender upon the occurrence of any
Default Event as provided for in this Note or now or hereafter existing at law
or in equity or by statute shall be cumulative and concurrent and shall be in
addition to every other right, power or remedy provided for in this Note or now
or hereafter existing at law or in equity or by statute, and the exercise or
beginning of the exercise by Lender or transferee hereof of any one or more of
such rights, powers or remedies shall not preclude the simultaneous or later
exercise by Lender of any or all such other rights, powers or remedies.
This Note shall be governed and construed and enforced in accordance
with the laws of the State of Colorado.
IN WITNESS WHEREOF, the Corporation has caused this Note to be duly
executed under its corporate seal.
ATTEST: V2K WINDOW FASHIONS, INC.
/s/ X.X. XXXXXXXXXXX /s/ XXX XXX
----------------------------- --------------------------------
X. X. Xxxxxxxxxxx, Secretary Xxx Xxx, CTO
Promissory Note - Page 3 of 3
