EXHIBIT 10.19
STANDARD
OFFICE BUILDING LEASE AGREEMENT
TABLE OF CONTENTS
Section Title Page
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1 Cover Page (Lease Terms) 2
2 Parties 4
3 Term 4
4 Premises 4
5 Possession 4
6 Rent 4
7 Use 6
8 Assignment; Sublet; Subordination, Estoppel;
Notice to Mortgagee 8
9 Maintenance and Repair; Right of Entry;
Alternations; Lines; Signs; 9
10 Insurance; Indemnity; Subrogation; Damage
and Destruction 10
11 Condemnation 12
12 Surrender of Premises 13
13 Default; Events; Remedies 13
14 Miscellaneous Provisions 15
1
COVER PAGE
1. LEASE TERMS Dated this 16th day of April, 19_____
For reference purposes only
1.1 PARTIES AND NOTICE ADDRESSES:
Landlord: N. D. Xxxxxxx
0000 Xxxxx Xxxxxxx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
Tenant: Heartsoft Software Co.
X.X. Xxx 000000
Xxxxx, Xxxxxxxx 00000
State of Incorporation: Oklahoma (Section 2.1)
1.2 PREMISES: 100A and 100B
3101 North Hemlock Circle
Broken Arrow, Oklahoma
Approximate square feet rentable: 2983
1.3 TERM: Commencement Date: May 1, 1992
Expiration Date: April 30, 1993 (Section 3.1)
Renewal Option: 1 years
Commencement Date: May 1, 1993
Expiration Date: April 30, 1994
Date option must be exercised in writing: January 31, 1993
(Section 5.4)
1.4 RENT:
Base Rent: Monthly $2361.00; Annual $28,332.00
Due: 1st day of month. Late payment charge of $25.00 for
rent received after 10th. Interest at 18% per annum on
delinquencies. $1,180.00 paid on execution of lease,
constituting rent for balance of April, 1992. $ N/A per
diem for early occupancy.
Rent Adjustment: Based on CPI for all urban consumers all items,
Dallas-Ft. Worth, Texas.
Base Period: October 1991 133.6
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Month year CPI Base Number
Rental Adjustment: Tax and Insurance Increases
Base Year Tax Calendar
Insurance X
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Calendar Fiscal
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Pro-Rata Percentage:
Approximate rentable feet in building: 11,500
Approximate rentable feet of premises: 2983
Pro-rata percentage attributable to premises
N/A % operating costs
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25.9 % taxes
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25.9 % insurance
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(Section 6.5.2)
1.5 USE OF PREMISES:
Solely for: Office and light assembly purposes (Section 7)
1.6 INSURANCE REQUIREMENTS:
Tenant: Fire: N/A Extended Coverage: N/A
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Business Interruption: N/A Liability Limits: N/A
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$100,000 per occurrence Other: N/A
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Landlord: Fire: N/A Extended Coverage: N/A
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Rental Income: N/A Liability Limits: N/A
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$500,000 per occurrence Other: N/A
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(Section 10)
1.7 GUARANTOR:
Name: Xxx Xxxxx
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Address:
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1.8 CONTENTS:
This lease consists of:
Page 1 through
Sections 1.1 through _________
Exhibits: A Legal Description
B Plot of floor plan
C Construction obligations, if any
D Landlord acknowledgment of commencement date
Addenda: _______________________________
__________________________
THESE COVER PAGES ARE INCORPORATED AS PART OF THIS LEASE AND EXECUTED BY
LANDLORD AND TENANT.
N. D. Xxxxxxx HEARTSOFT SOFTWARE CO.
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By: /s/ N.D. Xxxxxxx By: /s/ Xxxxxxxx X. Xxxxx
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President
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Landlord Tenant
Tax Identification # 00-0000000
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Date : April 16, 1992
2. PARTIES
2.1 The parties to this lease are as shown on the cover page of this
lease.
3. TERM
3.1 The terms of this lease is as shown on the cover page of this lease.
4. PREMISES
4.1 Landlord leases to Tenant and Tenant leases from Landlord the Premises
identified on the cover page of this lease situated in the Building named
on the cover page. The approximately square footage of the Premises and
the percentage that the Premises represent of the rentable area of the
Building are shown on the cover page. The Premises are outlined on Exhibit
B attached.
5. POSSESSION
5.1 DELAYED DELIVERY. Written notice from Landlord to Tenant that
Premises are available for occupancy on a specific date shall constitute
delivery of possession of Premises to Tenant. If possession is not
delivered to Tenant by commencement date and cause for delay is not the
fault of Tenant or its agents, the commencement date shall be extended to
the date possession is delivered to Tenant. If cause for the delay is the
fault of Tenant or its agents, Landlord may cancel this Lease by notice to
Tenant fifteen (15) days prior to effective date of cancellation.
5.2 EARLY OCCUPANCY. The commencement date of this Lease shall be the
earlier of the date possession of the Premises is delivered to Tenant or
the date Tenant occupies, commences alterations to or conducts business in
all or a part of the Premises.
5.3 ACCPETANCE OF PREMISES. Occupying all or any portion of the Premises
by Tenant shall be conclusive that the Premises are in satisfactory
condition and acceptable Tenant subject to latent defects and
deficiencies listed in writing by Tenant to Landlord within ten (10) days
after Tenant's occupancy.
5.4 RENEWAL OPTION. If not in default, Tenant shall have option to renew
this Lease for 1 years commencing on expiration date. Option must be
exercised by written notice to Landlord by January 31, 1993 and once
exercised, is irrevocable. Base Rent during renewal term shall be
determined by the formula used for the original term of the lease. Tenant
shall have no further renewal option. All other provisions of this Lease
remain the same during renewal term.
6. RENT
6.1 RENT. WHEN DUE; WHERE PAID. All monies payable by Tenant to Landlord
under this Lease shall be deemed to be rent and shall be payable and
recoverable as rent in the manner herein provided and Landlord shall have
all rights against Tenant for default in
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any such payment. Rent shall be paid to Landlord in advance, on the
first day of each calendar month, during the entire term of this Lease,
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,
or to such other person or entity or to such other address as Landlord
may designate in writing. Tenant's obligation to pay all rent due under
this Lease shall survive the expiration or earlier termination of this
Lease. Should this Lease commence on a day other than the first day of
the month or terminate on a day other than the last day of the month, the
rent for such partial month shall be pro-rated based on a 365-day year.
6.2 BASIC RENT: Tenant agrees to pay to Landlord the rent as shown on
the cover page of this Lease.
6.3 INTEREST ON DELINQUENCIES: If Tenant shall fail to pay any rent when
due, such unpaid amounts shall bear interest at the rate shown on the cover
page of this Lease.
6.4 LATE PAYMENT CHARGE: If Tenant shall fail to pay any rent when due,
Tenant shall pay to Landlord, in addition to the interest provided for in
Section 6.3, a late payment charge for each occurrence of an amount as
shown on the cover page of this Lease.
6.5 ADJUSTMENTS TO RENT:
6.5.1 Property Taxes Caused By Tenant Improvements: In the event
that an increase in Real Property Taxes is caused by the Tenant's
improvements made to the Premises, Tenant shall pay the increase
attributable to such improvements.
6.5.2 Pro-Rata Definition: Tenant's pro-rata share is defined as
the ratio of the square footage of the Premises to the total rentable
square footage of the Building. In this Lease Tenant's pro-rata share
is shown on cover page subject to increase or decrease due to any
increase in the square footage of the premises.
6.5.3 Insurance: Tenant shall pay its pro-rata share of increased
cost of insurance maintained by Landlord on the Building or the
operation thereof.
6.5.4 Taxes: Tenant shall pay its pro-rata share of all Real
Property Taxes levied and assessed upon the Building and the land upon
which the Building is situated which are in excess of the Real
Property Taxes assessed for the tax year in which the commencement
date of this Lease occurs.
6.5.5 Cost of Living: Annual adjustment to rent according to the
following formula:
CPI All Urban Consumers, All Items Index Number,
Dallas-Ft. Worth for most recent anniversary date
of CPI Base Number date on Cover Page
Divided by
CPI Base Number shown on Cover Page
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6.6 Landlord Lien: To secure payment of said rent, Landlord is hereby
given lien on all movable property of Tenant placed in the premises, but
the statutory landlord's lien for rent is not waived, the express lien
herein grated being in addition thereto.
7. USE
7.1 GENERAL: Premises shall be used only for the use specified on the
cover page of this Lease and for no other use. Tenant shall, at Tenant's
expense, comply with all laws, rules, regulations, requirements, and
ordinances enacted or imposed by any governmental unit having jurisdiction
over the Building, Premises, Landlord or Tenant.
7.2 RESTRICTIONS ON USE:
Tenant shall not:
7.2.1 Do or permit to be done anything which will invalidate or
increase the cost of any insurance coverage on the Building and the
Premises;
7.2.2 Do or permit anything to be done in the Building or on the
Premises which will obstruct or interfere with the rights of other
tenants or occupants of the Building;
7.2.3 Use, allow or permit the Premises to be used for any
improper or objectionable purpose;
7.2.4 Cause, maintain or permit any nuisance in or about the
Premises;
7.2.5 Commit or permit any waste to be committed in the Premises;
7.2.6 Use or occupy Premises in violation of any law, rule,
regulation, requirement or ordinance enacted or imposed by any
governmental unit having jurisdiction over the Building, Premises,
Landlord or Tenant;
7.2.7 Overload, damage or obstruct any utility lines providing
services to the Building or Premises;
7.2.8 Install any fixtures or equipment which will overload the
floors in the Premises or in any way affect the structural capacity or
design of the premises or the Building.
7.3 BUILDING REGULATIONS: Tenant shall obey all rules and regulations of
the Building if set forth by the Landlord. In such cases rules will be
attached to and incorporated as a part of this lease. Landlord shall have
the right to make changes or additions to such
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rules and regulations provided such changes or additions, except those
affecting the safety and operation of the Building or Premises, do not
unreasonably affect Tenant's use of the Premises. Landlord shall not be
liable for failure of any tenant to obey such rules and regulations.
Failure by Landlord to enforce any current or subsequent rules or
regulations against any tenant of the Building shall not constitute a
waiver thereof.
7.4 QUIET ENJOYMENT: Landlord agrees that, subject to terms, covenants
and conditions of this Lease, Tenant may, upon observing and complying with
all terms, covenants and conditions of this Lease, peaceably and quietly
occupy the Premises.
7.5 LANDLORD SERVICES: Landlord shall furnish Tenant those services
hereafter described. Janitor service and refuse removal service shall be
furnished following normal business hours. All other services shall be
furnished during the hours of 7:00 a.m. to 6:00 p.m. on weekdays and 7:00
a.m. to 1:00 p.m. on Saturdays (except holidays). If any services to be
provided are suspended or interrupted by strikes, repairs, alternations,
orders from any governmental authority or any cause beyond Landlord's
reasonable control, Landlord shall not be liable for any costs or damages
incurred by Tenant. Suspension or interruption shall not result in any
abatement of rent, be deemed an eviction or relieve Tenant of performance
of Tenant's obligations under this Lease.
Services furnished:
7.5.1 Elevator service in common with others, where applicable.
7.5.2 Men's and women's restrooms situated on the floor in which
the Premises are located together with hot and cold water for use in
said restrooms;
7.5.3 One refrigerated drinking fountain on the floor on which the
Premises are located;
7.5.4 A clean, street-level lobby, entrance way, elevator lobbies,
public corridor and other public portions of the Building for use in
common with others;
7.5.5 Electric current sufficient to operate the Building's
standard fluorescent lighting fixtures and to provide for wall or
floor duplex receptacles installed in Premises;
7.5.6 Relamping and maintaining building standard fluorescent
lighting fixtures installed in Premises;
7.5.7 Heating, ventilating and air conditioning sufficient to
provide, in Landlord's judgment, reasonable comfort for normal office
use in Premises having a maximum occupancy loan of one person per 100
square feet.
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7.5.8 Janitor service and refuse removal Monday through Friday
(exclusive of holidays). The level of janitor service and refuse
removal provided shall not include cleaning, maintenance and providing
supplies for eating facilities, computer centers or special equipment
areas.
8. ASSIGNMENT; SUBLET; SUBORDINATION; ESTOPPEL; NOTICE TO MORTGAGEE; SALE BY
LANDLORD
8.1 ASSIGNMENT, SUBLET: Tenant shall not assign this Lease or any part
thereof or sublet all or any part of the Premises without prior written
consent of Landlord, which shall not be unreasonably withheld. Any
assignment or subletting consented to by Landlord shall be evidenced in
writing in a form acceptable to Landlord. This Lease shall not be
assignable by operation of law. Any transfer of this Lease by merger,
consolidation, liquidation or change in ownership of or power to vote the
majority of outstanding stock shall constitute an assignment. Any
assignment or subletting shall not diminish the liability of the Tenant.
Consent by Landlord shall not relive Tenant from obtaining written consent
to any subsequent assignment.
8.2 SUBORDINATION: This Lease is subject and subordinated to all present
and future mortgages, deeds of trust and other encumbrances affecting the
Premises or the property of which the Premises are a part. Within fifteen
(15) days after written request from Landlord, Tenant agrees to execute, at
no expense to Landlord, any instrument which may be deemed necessary or
desirable by Landlord to further effect the subordination of this Lease to
any mortgage, deed of trust or encumbrance. Tenant hereby irrevocably
appoints Landlord as attorney-in-fact of Tenant at any time for Tenant, and
in Tenant's name, to execute proper subordination agreements to this
effect.
8.3 ATTORNMENT: If the interest of the Landlord is transferred to any
person or entity by reason of foreclosure or other proceedings for
enforcement of any mortgage, deed of trust or security interest or by
delivery of a deed in lieu of foreclosure or other proceedings, Tenant
shall immediately and automatically attorn to such person or entity. In
event of such transfer, this Lease and tenant's right hereunder shall
continue undisturbed so long as Tenant is not in default.
8.4 ESTOPPEL CERTIFICATE: Tenant will at any time and from time to time,
upon not less than twenty (20) days prior request by Landlord, execute,
acknowledge and delivery to Landlord a statement in writing executed by
Tenant certifying that this Lease is unmodified and in full effect or if
there have been modifications, that this Lease is in full effect as
modified, setting forth such modifications; the dates to which the rent has
been paid, and either stating that to the knowledge of the signer of said
statement that no default exists or specifying each such default of which
the signer may have knowledge.
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It is intended that any such statement executed by Tenant maybe relied
upon by any prospective purchaser or mortgagee or existing mortgagee of
the Building.
8.5 NOTICE TO MORTGAGEE: In the event of any act or omission by Landlord
which would give Tenant the right to damages or terminate this Lease by
reason of a constructive or actual eviction from all or part of the
Premises, Tenant shall not commence action or terminate until it shall have
given written notice to Landlord and the holder of the indebtedness or
other obligation secured by a first mortgage or first deed of trust
affecting the Building, if the name and address of such holder has
previously been furnished Tenant, and until a reasonable period of time for
remedying such act or omission shall have elapsed following the giving of
such notice, during which time Landlord and such holder, or either of them,
their agents or employees, shall be entitled to enter the Premises and do
whatever may be necessary to remedy such act or omission. During the
period following the giving of such notice and during the remedying of such
act or omission, the rent shall be abated and apportioned only to the
extent that any part of the Premises shall be untenable.
8.6 SALE BY LANDLORD: A sale, conveyance or assignment of the Building
shall operate to release Landlord from liability 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 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.
9. MAINTENANCE AND REPAIRS; RIGHT OF ENTRY; ALTERATIONS; LIENS; SIGNS
9.1 MAINTENANCE OR REPAIRS BY TENANT: Tenant shall maintain the Premises
in good condition. Tenant shall repair or replace any damage or injury to
the Premises or the Building caused by Tenant, its agents, employees or
invitees. All maintenance and repairs made by Tenant shall be performed
only by licensed contractors first approved by Landlord. Tenant shall
require the contractor to comply with Landlord's regulations regarding all
work to be performed.
9.2 LANDLORD'S RIGHT TO MAINTAIN OR REPAIR: If, within ten days following
occurrence, Tenant fails to repair or replace any damage to the Premises or
Building caused by Tenant, its agents, employees or invitees Landlord may,
at its option, cause all required maintenance, repairs or replacements to
be made. Tenant shall promptly pay Landlord all costs incurred plus an
administrative fee of 20 percent of such costs.
9.3 LANDLORD'S RIGHT OF ENTRY: Landlord, its agents or employees shall
have the right to enter the premises at reasonable hours to make
inspections, alterations, or repairs to the
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Building or the Premises. In event of emergency Landlord, its agents or
employees shall have the right of entry at any time and may perform any
acts related to safety, protection, preservation or improvement of the
Building or the Premises. Except for repair of casualty damage, Tenant
shall not be entitled to any abatement or reduction of rent because of
work performed within the Building or Premises by Landlord.
9.4 MAINTENANCE BY LANDLORD: Landlord shall repair, replace and maintain
the external and structural parts of the Building which do not comprise a
part of the Premises and are not leased to others. Landlord shall perform
such repairs, replacements and maintenance with reasonable dispatch, in a
good and workmanlike manner, but Landlord shall not be liable for any
damages, direct, indirect or consequential, or for damages for personal
discomfort, illness or inconvenience of Tenant by reason of failure of such
equipment, facilities or systems or reasonable delays in the performance of
such repairs, replacements and maintenance, unless caused by the deliberate
act or omission, or the negligence of Landlord, its servants, agents or
employees.
9.5 ALTERATIONS BY TENANT: Tenant shall make no changes, additions,
alterations or improvements to the Premises without the prior written
consent of Landlord and subject to all rules, requirements and conditions
imposed by Landlord at the time such consent is given. Landlord shall have
the right to withhold its consent.
9.6 ALTERATIONS BY LANDLORD: Landlord may make any repairs, alterations
or improvements which Landlord deems necessary or advisable for the
preservation, safety or improvement of the Building or the Premises.
9.7 LIENS: Tenant shall cause no liens of any kind, including but not
limited to mechanics liens, liens for materials, wages, labor or services,
to be placed against the Premises or Building in which the Premises are
situated.
9.8 SIGNS: Tenants shall not inscribe any inscription or post, place, or
in any manner display any sign, notice, picture, placard, poster or
advertising matter anywhere in or about the Building or Premises at places
visible (either directly or indirectly as an outline or shadow on a glass
pane) from anywhere outside the Premises without Landlord's prior written
consent. Upon expiration or sooner termination of this Lease Tenant shall
remove all signs or advertising consented to by Landlord and shall repair
any damaged caused by such removal.
10. INSURANCE, INDEMNITY, SUBROGATION, DAMAGE AND DESTRUCTION
10.1 INSURANCE BY LANDLORD: Landlord may maintain insurance for those
perils and in amounts which would be considered prudent for similar income
type property situated in the general area of the Building or which is
required by any mortgagee or creditor of
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Landlord. Cost of all insurance maintained by Landlord shall be considered
as a part of the Operating Costs of the Building.
10.2 Insurance by Tenant: Tenant shall maintain at Tenant's expense:
10.2.1 Fire insurance with extended coverage endorsement for lot
less than 80% of the current replacement cost of Tenant improvements,
trade fixtures, furniture and equipment situated in the Premises.
10.2.2 Comprehensive public liability insurance on an occurrence
basis with respect to Tenant's business and occupancy of the Premises
for any one occurrence or claim of not less than $100,000 or such
other amount as Landlord may reasonably require in writing from time
to time.
10.2.3 Insurance against such other perils and in such amounts as
Landlord may from to time reasonably require in writing. Such request
shall be made on the basis that the insurance coverage requested is
customary at the time for prudent tenants.
10.2.4 All policies of insurance maintained by Tenant shall be in a
form acceptable to Landlord, issued by an insurer licensed to do
business in the state or province in which the Building is situated,
require at least 15 days written notice to Landlord of termination or
material alteration and waive, to the extent available, any right of
subrogation against Landlord. If requested by Landlord, Tenant shall
promptly deliver to Landlord certified copies or other evidence of
such policies and evidence satisfactory to Landlord that all premiums
have been paid and policies are in effect.
10.3 INDEMNITY: Tenant shall indemnify and hold harmless Landlord from all
loss, damage, liability or expense, including attorney fees, resulting from
any injury to any person or loss of or damage to any property caused by or
resulting from any act, omission or negligence of Tenant or any officer,
employee, agent, contractor, invitee or visitor of Tenant in or about the
Premises or the Building, but the foregoing provision shall not be
construed to make Tenant responsible for loss, damage, liability or expense
resulting from injuries to third parties caused by any act, omission or
negligence of Landlord or of any officer, employee, agent, contractor,
invitee or visitor of Landlord. Landlord shall not be liable for any loss
or damage to person or property sustained by Tenant, or other persons,
which may be caused by the Building or the Premises, or any appurtenances
thereto, being out of repair or by the bursting or leakage of any water,
gas, sewer or steam pipe, or by theft or by any act of neglect of any
tenant or occupant of the Building, or of any other person, or by any other
cause whatsoever, unless caused by the negligence of Landlord.
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10.4 WAIVER OF SUBROGATION: To the extent that a loss is covered by
insurance in force and recovery is made for such loss, the Landlord and
Tenant hereby mutually release each other from liability and waive all
right of recovery against each other for any loss from perils insured
against under their respective fire insurance policies (including extended
coverage), provided that this waiver shall not be applicable if it has the
effect of invalidating any insurance coverage of Landlord or Tenant.
10.5 DAMAGE AND DESTRUCTION: In the event the Building or the Premises
shall be destroyed or rendered untenantable, either in whole or in part, by
fire or other casualty, Landlord may, at its option, restore the Building
or Premises to as near their previous condition as is reasonably possible,
and in the meantime the rent shall be abated in the same proportion as the
untenantable portion of the Premises bears to the whole thereof; but unless
Landlord, within sixty days after the happening of any such casualty, shall
notify Tenant of its election to so restore, this Lease shall thereupon
terminate and Tenant shall vacate the Premises. Such restoration by
Landlord shall not include replacement of furniture, equipment or other
items that do not become part of the Building or any improvements to the
Premises in excess of those provided for in the allowance for building
standard items as of the commencement date of this Lease. Restoration of
the Premises required beyond Landlord's obligation shall be performed by
the Tenant at no cost to the Landlord.
10.6 DELAY BEYOND LANDLORD'S CONTROL: No penalty shall accrue to Landlord
for delay in commencing or completing repairs caused by adjustment of
insurance claims, governmental requirements or any cause beyond Landlord's
reasonable control.
11. CONDEMNATION
11.1 CONDEMNATION; AWARD; TERMINATION: If the Building or Premises shall
be taken or condemned for any public purpose, or for any reason whatsoever,
to such an extent as to render either or both untenantable, either Landlord
or Tenant shall have the option to terminate this Lease effective as of the
date of taking or condemnation. If the taking or condemnation does not
render the Building and the Premises untenantable, this Lease shall
continue in effect and Landlord shall promptly restore the portion not
taken to the extent possible to the condition existing prior to the taking.
If, as a result of such restoration, the area of the Premises is reduced,
the rental shall be reduced proportionately. All proceeds from any taking
or condemnation shall be paid to Landlord. Tenant waives all claim against
such proceeds. A voluntary sale or conveyance in lieu of but under the
threat of condemnation shall be considered a taking or condemnation for
public purpose.
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12. SURRENDER OF PREMISES
12.1 Surrender at Expiration: Upon expiration or other termination of this
Lease, Tenant shall immediately surrender possession of the Premises to
Landlord in substantially the condition in which Tenant is required to
maintain the Premises except for reasonable wear and tear and damage by
fire or casualty. All keys which Tenant has been furnished for any locks
within the Building and the Premises shall be delivered to Landlord. Upon
surrender, all right, title and interest of Tenant in the Premises shall
cease. All property remaining in the Premises following surrender shall be
considered to have been abandoned by Tenant and Landlord may dispose of it
in any manner Landlord wishes. Tenant shall reimburse Landlord for all
costs incurred for disposal together with all costs for repairs required
because of removal of all or any of such abandoned property.
13. DEFAULT; EVENTS; REMEDIES
13.1 The occurrence of any one of the following events shall constitute a
default of this Lease by Tenant:
13.1.1 Failure of Tenant to make any payment of rent or other
required payment when due, and such failure continues for a period of
five days after mailing of written notice by Landlord to Tenant;
13.1.2 Vacating or abandonment of all or a substantial portion of
the Premises;
13.1.3 Failure of Tenant to comply with any provisions of this
Lease, other than payment of rent, and such failure shall continue for
fifteen days after mailing of written notice by Landlord to Tenant;
provided however, that if the nature of Tenant's default is such that
more than fifteen days are reasonably required for its cure, Tenant
shall not be default if Tenant commence such cure to completion;
13.1.4 The making of an assignment or general arrangement for the
benefit of creditors by Tenant or guarantors of Tenant's obligations;
13.1.5 The filing by Tenant or a guarantor of Tenant's obligations
of a petition under any section or chapter of the present Federal
Bankruptcy Act (or Canadian equivalent) or amendment thereto or under
any similar law or statute of the United States (or Canada) or any
state or province thereof, or the adjudication of Tenant or guarantor
of Tenant's obligations as a bankrupt or insolvent in proceedings
filed against Tenant or guarantor, and such adjudication shall not
have been vacated, set aside or stayed within the time permitted by
law;
13.1.6 The appointment of a receiver or trustee for all or
substantially all of the assets of Tenant or any guarantor of Tenant's
obligations and such receivership
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shall not have been terminated or stayed within the time permitted by
law;
13.1.7 The attachment, execution or other judicial seizure of
substantially all of Tenant's assets located in the Premises or of
Tenant's interest in this Lease where such seizure is not discharged
within thirty (30) days.
13.2 REMEDIES IN EVENT OF DEFAULT: Upon the occurrence of any event of
default, Landlord shall have the option to do any one or more of the
following without any notice or demand, in addition to and not in
limitation of any other remedy permitted by law or this Lease:
13.2.1 Terminate this Lease, in which event Tenant shall
immediately surrender the Premises to Landlord. If Tenant shall fail
to do so, Landlord may without notice and prejudice to any other
remedy available, enter and take possession of the Premises and remove
Tenant or anyone occupying the Premises and its effects without being
liable to prosecution or any claim for damages. Tenant agrees to
indemnify Landlord for all loss and damage suffered by Landlord
because of such termination whether through inability to relet the
Premises or otherwise, including any loss of rent for the remainder of
the term of this Lease.
13.2.2 Declare the entire amount of all rent which would have
become due and payable during the remainder of the term of this Lease
to be due and payable immediately, in which event Tenant agrees to pay
the same to Landlord immediately. Such payment shall constitute
payment in advance of the rent stipulated for the remainder of the
Lease term. Acceptance by Landlord of the payment of such rent shall
not constitute a waiver of any then existing default thereafter
occurring.
13.2.3 Enter upon and take possession of the Premises as agent of
Tenant without terminating this Lease and without being liable to
prosecution or any claim for damages. Landlord may relet all or any
portion of the Premises as the agent of Tenant for such term and upon
such terms as Landlord sees fit and receive the rent, in which event
Tenant shall pay to Landlord on demand the cost of renovating,
repairing and altering the Premises for a new tenant or tenants, plus
all costs of reletting the Premises and any deficiency arising by
reason of such reletting; provided however, that Landlord shall have
not duty to relet the Premises and Landlord's failure to do so shall
not release Tenant's liability for rent or damages. If Landlord
elects to enter and relet the Premises the Landlord may at any time
thereafter elect to terminate this Lease for Tenant's default. If
Landlord takes possession of the Premises, Landlord shall have the
right to rent any other available space in the Building before
reletting or attempting to relet the Premises.
14
Landlord Tenant
/s/ NDH /s/ BPS
------- -------
13.2.4 Landlord may do whatever Tenant is obliged to do by the
provisions of this Lease and may enter the Premises without being
liable to prosecution or claim for damages in order to accomplish this
purpose. Tenant agrees to reimburse Landlord immediately upon demand
for any expenses which Landlord may incur in complying with the terms
of this Lease on behalf of Tenant. Tenant agrees that Landlord shall
not be liable for any damages to Tenant from such action, whether
caused by negligence of Landlord or otherwise.
14. MISCELLANEOUS PROVISIONS
14.1 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 the 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. Landlord's failure
to enforce against Tenant or any other tenant of the Building any of the
rules or regulations made by Landlord shall not be deemed a waiver of such
rules or regulations. No act or thin done by Landlord, its agent or
employees during the Lease 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 employee shall not operate as a
termination of this Lease or a surrender of the Premises. No payment by
Tenant, or receipt of Landlord, of a lesser amount than the rent due shall
be deemed to bother than on account of the earliest stipulated rent, nor
shall any endorsement or statement on any check or any letter accompanying
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.
14.2 HOLDING OVER: If Tenant shall fail to vacate the Premises upon
expiration or sooner termination of this Lease, Tenant shall be a
month-to-month Tenant and subject to all laws of the state or province
in which the Building is situated applicable to such tenancy. The rent
to be paid Landlord by tenant during such continued occupancy shall be the
same being paid by Tenant as of the date of expiration or sooner
termination.
14.3 REMOVAL OF PROPERTY: If Tenant shall fail to remove any of its
property of any nature from the Premises or Building at the termination of
this Lease or when Landlord has the right or re-entry, Landlord may, at its
option immediately remove and store said property without liability for
loss or damage, such storage to be for the account and at the expense of
Tenant. In the event that Tenant shall not pay the cost of storing any
such property after it has been stored for a period of third days or more,
Landlord may, at its option, sell, or permit to be sold, any or all of such
property at public or private sale, in such manner and at such times and
places as Landlord in its sole discretion may deem
15
Landlord Tenant
/s/ NDH /s/ BPS
------- -------
property, without notice to Tenant, and shall apply the proceeds of such
sale, first to the cost and expense of such sale, including reasonable
attorney fees actually incurred; second to the payment of costs for
storing such property; third to the payment of any other money which may
then be or thereafter become due Landlord from Tenant under any of the
terms of this Lease; and fourth, the balance, if any, to Tenant.
14.4 NOTICES: All notices under this Lease shall be in writing and
delivered in person or sent by prepaid registered or certified mail to
Landlord at the place designated on the cover page, and to the Tenant at
the place designated on the cover page, or to the addresses as hereafter
may be designated by either party in writing. Notices mailed shall be
deemed given on the date of mailing.
14.5 CONSENT NOT UNREASONABLY WITHHELD: Unless otherwise specifically
provided, whenever consent or approval of Landlord or Tenant is required
under the terms of this Lease, such consent or approval shall not be
unreasonably withheld or delayed. Tenant's sole remedy if Landlord
unreasonably withholds or delays consent or approval shall be an action for
specific performance and Landlord shall not be liable for damages. If
either party withholds any consent or approval, such party shall on written
request deliver to the other party a written statement giving the reasons
therefor.
14.6 ATTORNEY FEES: If, on account of any breach or default by either
Landlord or Tenant of their respective obligations under this Lease, it
shall become necessary to employ an attorney to enforce or defend any of
its rights or remedies hereunder, and should such party prevail, it shall
be entitled to reasonable attorney fees incurred.
14.7 SUCCESSORS: Subject to the provisions pertaining to assignment and
subletting, the covenants and agreements of this Lease shall be binding
upon the heirs, legal representatives, successors and assigns of any or all
of the parties hereto.
14.8 RELATIONSHIP OF PARTIES: Nothing contained in this Lease shall create
any relationship between the Landlord and Tenant 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 Tenant's business, or a joint venturer or a member of a joint or common
enterprise with Tenant.
14.9 ENTIRE AGREEMENT; CAPTIONS: Tenant acknowledges and agrees that it
has not relied upon any statement, representation, agreement or warranty
except such as may be expressly set forth in this Lease and it is agreed by
Landlord and Tenant that no amendment or modification of this Lease shall
be valid or binding unless in writing executed by Landlord and Tenant. No
provisions of this Lease shall be altered, waived, amended or extended
except in writing executed by Landlord and Tenant. The paragraph headings
contained in this Lease are for convenience only and shall in no way
enlarge or limit the scope or meaning of the provisions of this Lease.
16
Landlord Tenant
/s/ NDH /s/ BPS
------- -------
14.10 SEVERABILITY: Each and every covenant and agreement contained in
this Lease is, and shall be construed to be, a separate and independent
covenant and agreement. If any term or provision of this Lease or the
application thereof to any person or circumstance shall to any extent be
invalid or unenforceable, the remainder of this Lease, or the application
of such term or provision to persons or circumstances other than those as
to which it is invalid or unenforceable, shall not be affected.
14.11 GENDER: Words of any gender used in this Lease shall be held and
construed to include any other gender and words in the singular number
shall be held to include the plural, unless the context otherwise requires.
14.12 BROKERAGE COMMISSIONS: Tenant warrants that it has had no
dealings with any broker or agent in connection with the negotiation or
execution of this Lease and tenant agrees to indemnify Landlord and hold
Landlord harmless from and against any and all costs, expenses or liability
for commissions or other compensation or charges claimed by or awarded to
any broker or agent with respect to this Lease.
14.13 CORPORATE AUTHORITY: If Tenant is a corporation, Tenant warrants
that it has legal authority to operate and is authorized to do business in
the state (province) in which the Premises are situated. Tenant also
warrants that the person executing this Lease on behalf of Tenant has
authority to do so and fully obligate Tenant to all terms and provisions of
this Lease. Tenant shall, upon request from Landlord, furnish Landlord
with a certified copy of resolutions of the board of Directors authorizing
this Lease and granting authority to execute it to the person or persons
who have executed it on Tenant's behalf.
Heartsoft Software Co.
--------------------------- -----------------------------------
by: /s/ N. D. Xxxxxxx /s/ Xxxxxxxx X. Xxxxx
----------------------- -----------------------------------
President
--------------------------- -----------------------------------
Landlord Tenant
17
Landlord Tenant
/s/ NDH /s/ BPS
------- -------
State of Oklahoma ) CORPORATION
)ss.
County of Tulsa )
Before me, the undersigned, a Notary Public, in and for said County
and State, on this 16th day of April, 1992, personally appeared Xxxxxxxx
Xxxxx to me know to be the identical person who subscribed the name of the
maker thereof to the foregoing instrument as its ______ and acknowledged to
me that he executed the same as his free and voluntary act and deed and as
the free and voluntary act and deed of such corporation, for the uses and
purposes therein set forth.
Given under my hand and seal of office the day and year last above
written.
/s/ Xxxxxxx Xxxxxxx
------------------------------
Notary Public
My Commission Expires: November 21, 1993
-----------------
State of Oklahoma ) INDIVIDUAL
)ss. ----------
County of Tulsa )
Before me, the undersigned, a Notary Public, in and for said County
and State, on this 16th day of April, 1992, personally appeared N.D.
Xxxxxxx to me know to be the identical person who executed the foregoing
instrument and acknowledged to me that he executed the same as his free and
voluntary act and deed for the uses and purposes therein set forth.
Given under my hand and seal of office the day and year last above
written.
/s/ Xxxxxxx Xxxxxxx
------------------------------
Notary Public
My Commission Expires: November 21, 1993
-----------------
GUARANTY
This addendum to the foregoing lease dated April 16, 1992 by and between
N. D. Xxxxxxx as Landlord and Heartsoft Software Co. as Tenant.
In consideration of N. D. Xxxxxxx, Landlord in the foregoing lease entering
into the covenants of said lease, the undersigned hereby jointly and severally
guarantee to the said N. D. Xxxxxxx (landlord) his heirs, successors, executor
or assigns, the full, prompt and faithful payment, performance and discharge by
Heartsoft Software Co., (tenant) the Tenant in said lease, of each of the
provisions and conditions in the foregoing lease or any other instrument given
or executed in pursuant thereof.
We further jointly and severally waive all notice of default by the Tenant
in the foregoing lease and waive notice of acceptance of this Guaranty.
IN WITNESS WHEREOF, we have hereunto set our hands this 16th day of April,
1992.
/s/ Xxxxxxxx X. Xxxxx
------------------------------
State of Oklahoma )
)ss.
County of Tulsa )
Before me, the undersigned, a Notary Public, in and for said County
and State, on this 16th day of April, 1992, personally appeared Xxxxxxxx
Xxxxx to me know to be the identical person who executed the foregoing
instrument and acknowledged to me that he executed the same as his free and
voluntary act and deed for the uses and purposes therein set forth.
Given under my hand and seal of office the day and year last above
written.
/s/ Xxxxxxx Xxxxxxx
------------------------------
Notary Public
My Commission Expires: November 21, 1992
-----------------
ADDENDUM
This addendum to a lease between N. D. Xxxxxxx as LANDLORD and Heartsoft
Software Co. as TENANT covering the premises identified as:
Xxxxx 000X xxx 000X
0000 Xxxxx Xxxxxxx Xxxxxx
Broken Arrow, Oklahoma
and executed on April 16, 1992.
It is the intent of this addendum to add premises identified as:
Xxxxx 000X
0000 Xxxxx Xxxxxxx Xxxxxx
Broken Arrow, Oklahoma
to the base lease. The term of the addendum will run concurrently with the term
of the base lease, the addendum will have option of renewal for the same period
as the base lease, and the rental for the option period will be calculated using
the same formula as the base lease. Initial additional rental for Suite 110D
will be $430.00 per month beginning August 1, 1992.
All other terms of the base lease will remain.
Executed this 30 day of July, 1992.
N. D. XXXXXXX HEARTSOFT SOFTWARE CO.
by /s/ N. D. Xxxxxxx by /s/ Xxxxxxxx Xxxxx
-------------------------- -----------------------------
Landlord Tenant
ADDENDUM
This addendum to a lease between N. D. Xxxxxxx as Landlord and Heartsoft
Software Co. as Tenant, dated April 16, 1992, for premises designated as Suites
100A and 100B, 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxx Xxxxx, Xxxxxxxx 00000.
Whereas Tenant is desirous of leasing additional space under conditions set out
below, and Landlord is willing to perform certain construction obligations in
consideration therefor,
Now, Therefore, Landlord and Tenant agree to the following:
1. The attached floorplan, Exhibit A, delineates the increased area which
will be included in the revised leased space.
2. Rental is to be paid upon 3 bases:
A. Base rent on 4109 sq ft rentable $3,253 per month
B. Rent which amortizes plumbing
& deck to be installed by Landlord 136
C. Variable rent on "Graduated Rent
Space" 172 month, first yr
------
Monthly rent, first year** $3,361
** For graduated rent space, following years are scheduled thusly:
2nd year $183 per month
3rd year 195
4th year 206
5th year 218
3. Rental adjustment based upon the CPI will affect only item A above.
The amortization, Item B, will be dropped after 5 years. Item C will
not be subject to the CPI adjustment during the 5 year term of this
addendum.
4. Construction obligations as set forth in the memorandum of Intent
dated June 9, 1995 between the parties hereto, attached to this
addendum and marked Exhibit B, remain valid except for the plumbing
and deck, costs for which have been determined and provisions for
payment of which are outlined above.
5. Term of this addendum will be for 5 years beginning August 1, 1995 and
ending July 31, 2000.
ADDENDUM
page 2
6. On execution of this addendum, Tenant has paid to Landlord $3,362
which is designated as a security deposit, the receipt of which is
acknowledged by Landlord.
7. Landlord agrees to start on the work required under this agreement
promptly, and to pursue the completion in a diligent manner. Landlord
agrees to do the work in a manner which gives as much consideration as
is reasonably possible to the problems of performing major
construction in an area where people are carrying on normal business
activities.
8. All other terms and conditions of the base lease remain unchanged.
Executed this 30th day of June, 1995.
LANDLORD TENANT
N. D. Xxxxxxx Heartsoft Software Co.
/s/ N. D. Xxxxxxx /s/ Xxxxxxxx Xxxxx
------------------------------ -------------------------------------
ADDENDUM #2
This Addendum to a lease between N. D. Xxxxxxx as Landlord and Heartsoft
Software Co. as Tenant, dated April 16, 1992, for premises designated as Suites
100A and 100B, 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxx Xxxxx, Xxxxxxxx 00000 and to
the Addendum to that lease, executed by the Parties to the Lease on June 30,
1995.
Whereas Landlord and Tenant have agreed to correct a mathematical error
contained in the Addendum executed on June 30, 1995,
Now, Therefore, Landlord and Tenant agree as follows:
Item #2 of the June 30, 1995 Addendum names 3 bases composing the total
monthly rent to be paid by Tenant, but the total noted as "Monthly rent,
first year" is $3,361, whereas the total of the 3 bases is actually $3,561.
The $3,561 amount is the correct amount, and it is the intent of this
Addendum #2 to effect that change.
Tenant agrees to pay the increased monthly payment, beginning with the
September 1995 rent.
Landlord agrees to leave the security deposit as designated in the 6-30-95
Addendum.
All other terms and conditions of the base lease and the June 30, 1995 Addendum
remain in full force and effect.
Executed this 5th day of October, 1995.
LANDLORD TENANT
N. D. Xxxxxxx Heartsoft Software Co.
/s/ N. D. Xxxxxxx /s/ Xxxxxxxx Xxxxx
------------------------------ -------------------------------------
ADDENDUM #3
This Addendum to a lease between N. D. Xxxxxxx as Landlord and Heartsoft
Software Co. as Tenant, dated April 16, 1992, for premises designated as Suites
100A and 100B, 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxx Xxxxx, Xxxxxxxx 00000 and to
the Addendum dated July 30, 1992, and the Addendum dated June 30, 1995 and
Addendum #2 to that lease, executed by the Parties to the lease on October 5,
1995.
Whereas Tenant desires additional space, which has been designated as Suite
100D, of approximately 936 feet, and wishes to enclose additional space,
formerly hall space of approximately 202 square feet, and
Whereas Landlord in consideration for the rental of that space was willing to,
and has, replaced the carpet in the subject area, painted walls, removed and
replaced walls and doors where desired by Tenant,
Now, Therefore, Tenant has agree to rent the additional space for an additional
rental of $901.00 per month payable beginning July 1, 1996, and continuing until
July 31, 2000. The annual CPI adjustment will apply to this portion of the
rental rate.
All other terms and conditions of the base lease and prior addenda remain in
full force and effect.
Rental including that called for in this Addendum will be:
July 1, 1996 Prior rental $3,561
This Addendum 901 $4,462
------
August 1, 1996 Prior rental $4,462
thru July, 1997 Graduated rent 11 $4,473
------
Executed this 17th day of July, 1996.
LANDLORD TENANT
N. D. Xxxxxxx Heartsoft Software Co.
/s/ N. D. Xxxxxxx /s/ Xxxxxxxx Xxxxx
------------------------------ -------------------------------------
N.D. XXXXXXX
0000 XXXXX XXXXXXX XXXXX
XXXXXX XXXXX, XXXXXXXX 00000
August 18, 1998
Heartsoft Software Company
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
Gentlemen:
Increasing utility and maintenance expenses have contributed to the need of
rental adjustments which are called for on an annual basis in our lease for
premises at 3101.
You are currently paying $4,483 per month, which is made up of the following
components:
1. Base rent $4,513
2. Amortization of expense 136
3. Graduated rent 194
For August, 1998, the revised rent will be as follows:
1. Base rent $4,563*
2. Amortization of expense 136
3. Graduated rent 206 $4,805
*Base rent calculation : CPI 12-97 152.5
-----
CPI 12-94 141.9 X $4.153 = $4,463
We appreciate your business, and feel sure you will understand that this annual
formality has not been observed since 1995 or earlier.
Sincerely,
/s/ N. D. Xxxxxxx
N. D. Xxxxxxx
