EXHIBIT 10.5
SUBLEASE AGREEMENT - 0000 XXXXXXX, XXXXXX, XXXXXXXX
DATED 2/26/97
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT is entered into this 26th day of February, 1997, by
and between Rocky Mountain Internet, Inc. ("Sublessor") and T & 0 Xxxxx & Xxxxxx
("Sublessee") subject to a certain lease ("Lease") dated November 24, 1995,
entered into by Sheridan Realty Corporation ("Lessor") and the Sublessor as
Lessee.
(1) SUBLEASE PREMISES
Sublessor leases to Sublessee and Sublessee leases from Sublessor upon
terms and conditions set forth herein commonly known as 1800 Glenarm, Suite
1100, 4,202 rentable square feet, attached as Exhibit "A," ("Sublease
Premises"), together with any rights-of-way, easements and any other rights, if
any, appurtenant thereto. Exhibit "A" closely, but not exactly represents the
existing floor plan of Suite 1100.
(2) TERMS AND CONDITIONS OF SUBLEASE
(a) TERMS. The term of this Sublease shall begin ON the 1ST day of MARCH,
1997, ("Commencement Date") and shall extend through the 7th day of January,
2001, unless terminated sooner as provided herein ("Termination Date").
(b) CONDITIONS. This Sublease Agreement is made expressly subject to all
of the terms and conditions of the Lease (Attached as Exhibit "B"). If an event
occurs that is not governed by the terms and provisions of this Sublease
Agreement, then the terms and provisions of the Lease shall govern such event.
Furthermore, the Sublessee assumes each and every covenant, duty and obligation
of the Lessee and promises to faithfully observe each and every term and
provision set forth in the Lease (except as may be modified by this Sublease
Agreement). The Sublessee acknowledges that the Sublessor shall be deemed to be
substituted for the Lessor under the Lease with respect to the rights of
Landlord and the Sublessor shall be entitled to exercise all of the rights and
privileges of the Lessor as defined in the Lease (except as may be modified by
this Sublease Agreement). By way of illustration and not by way of limitation,
the Sublessor shall be entitled to exercise any remedy provided to the Lessor
under the Lease (in addition to any remedy set forth in this Sublease) in the
event the Sublessee breaches any condition, provision or covenant set forth in
this Sublease Agreement. Notwithstanding anything herein to the contrary,
Sublessor does not assume any of the obligations of Landlord, and as between the
Sublessor and Sublessee, this Sublease Agreement is not subject to the following
Provisions Paragraphs 2.1, 3.1, 8.1, 9.2, 12.1, 20,1, 20.2, 20.3, Exhibits B, C,
E and F and paragraphs 2 and 3 of the first Amendment.
(3) RENTAL
Sublessee agrees to pay to Sublessor for the full term hereof the sum of
$178,147.72, payable in advance and without notice in equal monthly
installments of $2,935.17 on the first day of each month from March 1, 1997
to December 31, 1997, and $4,107.46 per month from January 1, 1998 to
December 31, 2000 and a final payment of $927.49 due January 1, 2001 at the
following address: 0000 00xx Xxxxxx, 00xx xxxxx, Xxxxxx, Xxxxxxxx 00000 (or
at such other address as Sublessor may designate in writing from time to
time) without any set-off or deduction whatsoever. Sublessee shall
additionally pay Tenant's pro rata share of all Building Operating Costs as
set forth in the Lease that exceed 1997 year-end building operating costs.
(a) Should Sublessee's monthly rent be more than five (5) days late from
the due date, Sublessor shall assess Sublessee a late fee of 5% of such
unpaid portion of overdue rent.
(4) USE OF SUBLEASE PREMISES
Sublessee shall have the right to use and occupy the Sublease Premises
for general business use. Any other use shall be permitted only with the
prior written consent of Sublessor, which consent may be withheld in
Sublessor's sole discretion. Throughout the term of this Sublease (and any
extension thereof), Sublessee, at Sublessee's sole cost and expense,
covenants to promptly comply with all laws and ordinances and the orders,
rules, regulations and requirements of all federal, state and municipal
governments and appropriate departments, commissions, boards and officers
thereof.
(5) PAYMENT OF TAXES
Sublessee agrees to pay all personal property taxes, all franchise or
license fees or any other charge levied against the Sublessee resulting from
the operation of the Sublessee's business in the Sublease Premises.
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(6) INSURANCE
During term of this Sublease, Sublessee shall carry and maintain insurance
as required under the Lease.
(a) WAIVER OF SUBROGATION. The parties agree that all insurance policies
obtained pursuant to this Sublease shall include a clause or endorsement which
shall waive the right of subrogation on the part of the insurance carrier
against both Sublessor and Sublessee. Sublessor and Sublessee hereby release
the other from any and all liability or responsibility to the other or anyone
claiming through or under them by way of subrogation.
(7) ASSIGNMENT AND SUBLETTING
Without Sublessor's consent, which will not be unreasonably withheld, this
Sublease or any interest herein may not be assigned by Sublessee, voluntarily or
involuntarily, by operation of law or otherwise, and all or any part of the
Sublease Premises shall not be subleased by Sublessee a merger, consolidation,
sale of substantially all of the assets or sale of a substantial amount of the
stock of Sublessee or a transfer of a substantial partnership interest of
Sublessee, and shall constitute an assignment of this Sublease for the purposes
of this paragraph. Any assignment or subletting in violation of this provision
shall be null and void and is strictly subject to the consent of the Landlord
and the terms of paragraph 28 of the Lease.
(8) INDEMNITY PROVISIONS
Sublessee agrees to exonerate, hold harmless, protect and indemnity
Sublessor, or any owner of the Sublease Premises, from and against any and all
losses, damages, claims, suits or actions, judgments and costs which may arise
during the term of this Sublease for personal injury, loss of life or damaged
property sustained in or about the Sublease Premises or the improvements and
appurtenances thereto upon the Sublease Premises or upon the adjacent sidewalks
and streets; and from and against all costs, counsel fees, expenses and
liabilities incurred in any such claims, the investigation thereof or the
defense of any action or proceeding brought thereon; and from and against any
judgments, orders, decrees or liens resultant therefrom and any fines levied by
any authority for any law, regulation or ordinance by virtue of the use by
Sublessee of the improvements and appurtenances thereto situated upon the
Sublease Premises. Sublessee shall not permit any mechanic's or materialmen's
liens to be filed against the Sublease Premises and hereby indemnifies and holds
Sublessor harmless from and against any liability, damage, expense or cost which
may be incurred by Sublessor in connection with any mechanic's or materialmen's
liens which may be filed against the Sublease Premises as a result of the
provisions of this Sublease. This indemnity shall specifically include
attorneys' fees and any costs incurred by Sublessor to enforce this indemnity.
(9) ADA COMPLIANCE
(a) DISCLOSURE. Sublessee hereby acknowledges that Sublessor and Broker
have advised Sublessee that the Premises and Sublessee may be subject to the
Americans With Disabilities Act (the "ADA"), a Federal law. Among other
requirements of the ADA that could apply to the Premises, Title III of the ADA
requires owners and tenants of "public accommodations" to remove barriers to
allow access by disabled persons and provide auxiliary aids and services for
hearing, vision or speech impaired persons by certain dates. All costs incurred
by Sublessee or Sublessor during the term of this Sublease (and any extension
thereof) to ensure Sublessee's compliance with the ADA, including necessary
alterations in or about the Sublease Premises or modifications to the access to
the building of which the Premises is a part, shall be at Sublessee's sole cost
and expense unless Sublessor has agreed, in writing, to pay for a portion of
said costs.
(b) INVESTIGATION. Sublessee hereby acknowledges that Sublessor and
Broker have recommended that Sublessee prior to executing this Sublease,
investigate the ADA and the regulations thereunder to determine if the ADA law
and regulations would apply to Sublessee and/or to the Premises in which
Sublessee is interested in occupying. Sublessee agrees that it is solely
responsible, at its expense, for conducting its own independent investigation of
all ADA issues prior to the execution date of this Sublease and during the
primary term of this Sublease (and any extension thereof).
(10) HAZARDOUS MATERIALS
Sublessee shall not (either with or without negligence) cause the escape,
disposal or release of any biologically or chemically active or other hazardous
substances or materials ("Hazardous Materials"). Sublessee shall not allow the
storage or use of such Hazardous Materials in any manner not sanctioned by law
or by the highest standards prevailing in the industry for the storage and use
of Hazardous Materials, nor allow to be brought into the Premises any Hazardous
Materials except with
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the prior written consent of Sublessor, which may be withheld in Sublessors
sole discretion. Without limitation, Hazardous Materials shall include those
described in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 USC Section 9601 et seq., the Resource
Conservation and Recovery Act, as amended, 42 USC Section 6901 et seq., and
applicable state or local laws and the regulations adopted under these acts. If
any lender or governmental agency shall ever require testing to ascertain
whether or not there has been any release of Hazardous Materials, then the
reasonable cost of testing and resulting cleanup thereof shall be reimbursed by
Sublessee to Sublessor upon demand as additional charges if such requirement
applies to the Premises, provided that such testing proves that Sublessee
released such Hazardous Materials on the Premises. In addition, Sublessee shall
execute affidavits, representations and the like from time to time at
Sublessor's request concerning Sublessee's best knowledge and belief regarding
the presence of Hazardous Materials on the Premises. In all events, Sublessee
shall indemnify Sublessor in the manner elsewhere provided in this Sublease from
any release of Hazardous Materials on the Sublease Premises occurring while
Sublessee is in possession, or elsewhere if caused by Sublessee or persons
acting under Sublessee.
(11) DEFAULT PROVISIONS
(a) The occurrence of any one or more of the following events, as well as
those applicable by reason of the Lease, shall constitute a default and breach
of this Sublease by Sublessee:
(1) FAILURE TO PAY RENT. Sublessee failing to pay the rental herein
reserved and such failure continues for five (5) days following the date when
due.
(2) FAILURE TO PAY OTHER COSTS. Sublessee failing to make any other
payments required to be made by Sublessee when due, where such failure shall
continue for a period of five (5) calendar days following written notice from
Sublessor to Sublessee.
(3) FAILURE TO KEEP COVENANTS. Sublessee failing to perform or keep any
of the other terms, covenants and conditions herein contained for which
Sublessee is responsible, and such failure continuing and not being cured for a
period of five (5) calendar days after written notice or if such default is a
default which cannot be cured within a 5-calendar-day period, then Sublessee's
failing to commence to correct the same within said 5-calendar-day period and
thereafter failing to prosecute the same to completion with reasonable
diligence.
(4) ABANDONMENT. Sublessee abandoning the Sublease Premises.
(5) BANKRUPTCY. Sublessee being adjudicated a bankrupt or insolvent or
Sublessee filing in any court a petition for bankruptcy or for reorganization or
for the adoption of an arrangement under the Bankruptcy Act (as now or in the
future amended) or the filing of an involuntary bankruptcy against Sublessee
[unless said involuntary bankruptcy is reanimated within thirty (30) calendar
days from the date of said filing], or Sublessee filing in any court for the
appointment of a receiver or trustee of all or a portion of Sublessee's property
or there being appointed a receiver or trustee for all or a portion of
Sublessee's property, unless said receiver or trustee is terminated within
thirty (30) calendar days from the date of said appointment.
(6) ASSIGNMENT FOR BENEFIT OF CREDITORS. Sublessee making any general
assignment or general arrangement of Sublessee's property for the benefit of
Sublessee's creditors.
(12) REMEDIES
In the event of an occurrence of default as set forth above, Sublessor
shall have the right to seek any remedies as pursuant to the Lease, as well as:
(a) TERMINATE SUBLEASE. Terminate this Sublease and end the term hereof
by giving to Sublessee written notice of such termination, in which event
Sublessor shall be entitled to recover from Sublessee at the of such termination
the present value of the excess, if any, of the amount of rent reserved in this
Sublease for the then balance of the term hereof over the then reasonable rental
value of the Sublease Premises for the same period. The present value shall be
determined by discounting all future excess rent amounts at a rate of eight
percent (8%) per annum. It is understood and agreed that the "reasonable rental
value" shall be the amount of rental which Sublessor can obtain as rent for the
remaining balance of the initial term or renewal term, whichever is applicable;
or
(b) XXX MONTHLY FOR RENTS. Without resuming possession of the Sublease
Premises or terminating this Sublease to xxx monthly for and recover all rents,
other required payments due under this Sublease, and other sums including
damages and legal fees at any time and from time to time accruing hereunder; or
(c) REPOSSESS SUBLEASE PREMISES. Upon written notice to all interested
parties, reenter and take possession of the Sublease Premises or any part
thereof and repossess the same as of Sublessors former estate and expel
Sublessee and those claiming through or under Sublessee and remove the effects
of either or both (forcibly, if necessary) without being deemed guilty in any
manner of trespass and without prejudice to any remedies for rent delinquencies
or preceding lease defaults, in which event Sublessor may from time to time
without terminating this Sublease relet the Sublease Premises or any
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part thereof for such term or terms and at such rental or rentals and upon
such other terms and conditions as Sublessor may deem advisable, with the
right to make alterations and repairs to the Sublease Premises, and such
reentry or taking of possession of the Sublease Premises by Sublessor shall
not be construed as an election on Sublessor's part to terminate this
Sublease unless a written notice of termination is given to Sublessee or
unless the termination thereof is decreed by a court of competent
jurisdiction. In the event of Sublessor's election to proceed under this
provision, then such repossession shall not relieve Sublessee of Sublessee's
obligation and liability under this Sublease, all of which shall survive such
repossession, and Sublessee shall pay to Sublessor as current liquidated
damages the basic rental and additional rental and other sums hereinabove
provided which would be payable hereunder if such repossession had not
occurred, less the net proceeds (if any) of any reletting of the Sublease
Premises after deducting all of Sublessor's expenses in connection with such
reletting, including but without limitation all repossession costs, brokerage
commissions, legal expenses, attorneys' fees, expenses of employees,
alteration costs, and expenses of preparation of such reletting. Sublessee
shall pay such current damages to Sublessor on the days on which the basic
rental would have been payable hereunder if possession had not been retaken,
and Sublessor shall be entitled to receive the same from Sublessee on each
such day.
(13) NOTICES
All notices, demands and requests required to be given by either party to
the other shall be in writing and shall either be hand delivered or sent by
certified or registered mail, return receipt requested, postage prepaid,
addressed to the parties at the addresses set forth below or at such other
addresses as the parties may designate in writing delivered pursuant to this
provision. Any notice when given as provided herein shall be deemed to have
been delivered on the date personally served or two (2) calendar days subsequent
to the date that said notice was deposited with the United States Postal
Service.
SUBLESSOR: Rocky Mountain Internet
c/o Xxxxxx Xxxxx
0000 00xx Xxxxxx, 00xx xxxxx
Xxxxxx, XX 00000
SUBLESSEE: T & 0 Xxxxx & Xxxxxx
c/o Xxxxx Xxxxx
1800 Glenarm, Suite 1100
Xxxxxx, XX 00000
(14) TIME OF THE ESSENCE
Time is of the essence hereof.
(15) QUIET ENJOYMENT
Sublessor represents, covenants, and warrants that:
(a) AUTHORITY. Sublessor has the right to enter into and consummate this
Sublease.
(b) PEACEFUL POSSESSION. Upon Sublessee's paying the rental herein
reserved and upon performing all of the terms and conditions of this Sublease on
Sublessee's part to be performed, Sublessee shall at all times during the term
of this Sublease peacefully and quietly have, hold and enjoy the Sublease
Premises.
(c) OBLIGATIONS UNDER THE LEASE. Throughout the term of the Sublease,
Sublessor shall maintain the Lease in good standing and promptly perform all
obligations of Sublessor thereunder NOT DELEGATED TO SUBLESSEE PURSUANT TO THIS
SUBLEASE.
(d) INDEMNITY. Sublessor and Sublessee shall indemnify each other and hold
each other harmless from and against all costs, expenses (including reasonable
attorney fees), losses, claims, liabilities, obligations, and damages resulting
from or arising out of a breach by Sublessor or Sublessee of its
representations, covenants, and warranties contained in this Section 16.
(e) NOTICE OF DEFAULT. If Sublessor is in default or breach under the
Lease, Sublessor shall provide written notice of such default to Sublessee
within two days of such default or breach.
(16) MISCELLANEOUS
(a) CHOICE OF LAW. This Sublease is entered into in the State of Colorado
and shall be construed in accordance with the laws thereof.
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(b) HEADINGS AND CAPTIONS. The headings and captions used in this Sublease
are for the convenience of reference only and shall not be used in the
construction or interpretation of this Sublease.
(c) INUREMENT. The covenants and agreements contained herein shall be
binding upon and inure to the benefit of the parties hereto, their heirs,
personal representatives, administrators, successors and assigns.
(d) CONSTRUCTION OF TERMS. Words of any gender used in this Sublease shall
be held to include any other gender, and words in the singular shall be held to
include the plural, as the identity of Sublessor or Sublessee requires.
(17) NO WAIVER
No waiver by Sublessor of any provisions hereof shall be deemed a waiver of
any other provision hereof or of any subsequent breach by Sublessee of the same
or any other provision. Sublessor's consent to or approval of any act shall not
be deemed to render unnecessary the obtaining of Sublessor's consent to or
approval of any subsequent act by Sublessee. The acceptance of rental hereunder
by Sublessor shall not be a waiver of any preceding breach by Sublessee of any
provision hereof, other than the failure of Sublessee to pay the particular
rental so accepted, regardless of Sublessor's knowledge of such preceding breach
at the time of acceptance of such rent.
(18) ATTORNEYS' FEES
In case suit shall be brought to enforce any provisions of this Sublease,
the prevailing party shall be awarded (in addition to the relief granted) all
reasonable attorneys' fees and costs resulting from such litigation.
(19) INTEREST ON PAST-DUE OBLIGATIONS
Any amount due to Sublessor not paid when due shall bear interest at the
rate of one percent (1%) per month from the date due; provided, however, that
any such payment of interest shall not excuse or correct any default by
Sublessee under this Sublease.
(20) LEGAL COUNSEL
By virtue of this paragraph, Broker advises and recommends that all
parties hereto obtain legal counsel to represent them in connection with the
examination of title, zoning of the Sublease Premises, the execution of this
Sublease, tax implications of the transaction and all other aspects relative
to the transaction contemplated hereby.
(21) AGENCY DISCLOSURE
The rules and regulations of the Colorado Real Estate Commission require
that Broker (Xxxxxx and Company) discloses its agency relationship with all
parties to a transaction. Broker hereby discloses that it is acting as dual
agent for and on behalf of Sublessor and Sublessee. The parties acknowledge
prior timely agency disclosure and consent to said agency relationship.
(22) SEVERABILITY
If any sentence, paragraph or section of this Sublease is held to be
illegal or invalid, this shall not affect in any manner those other portions of
the Sublease not illegal or invalid and this Sublease shall continue in full
force and effect as to those provisions.
(23) SECURITY DEPOSIT
Sublessee shall deposit with Sublessor a Security Deposit of $3,790.00 upon
the execution of this Sublease. Sublessor will hold such security deposit in
accordance with paragraph 7.1 of the Lease. Sublessor agrees to promptly (within
thirty (30) days of the default of Sublessor, termination, or expiration of this
Sublease) return the Security Deposit, less any allowed deductions, to Sublessee
upon Sublessor's default under the Lease, or upon the termination or expiration
of this Sublease.
(25) ADDITIONAL PROVISIONS
(a) Sublessee agrees to take the premises in an as is condition.
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IN WITNESS WHEREOF, the parties have executed this Sublease Agreement the
day and year first written above.
SUBLESSOR: SUBLESSEE:
Rocky Mountain Internet, Inc. T & X Xxxxx & Xxxxxx
0000 00xx Xxxxxx, 00xx floor 1800 Glenarm, Suite 1100
Xxxxxx, XX 00000 Xxxxxx, XX 00000
By: /s/ By: /s/
---------------------------- -----------------------------
Its: President Its: President
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Lessor hereby consents to this Sublease Agreement by signing below and Lessor
grants Sublessee a Right of First Refusal to assume the Lease upon Sublessor's
uncured default under the Lease.
LESSOR:
Sheridan Realty Corp.
0000 Xxxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
By: /s/
----------------------------
Its: Vice President
---------------------------
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EXHIBIT A
Legal Description and Premises
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