STANDARD COMMERCIAL LEASE
ARTICLE 1.00 BASIC LEASE TERMS
1.01 Parties. This lease agreement ("Lease") is entered into by and between the
following Lessor and Lessee:
WHITEHALL - MIDWAY PARK NORTH, LTD. ("Lessor")
ALLSTAR SYSTEMS, INC ("Lessee")
1.02 Leased Premises. In consideration of the rents, terms, provisions and
covenants of this Lease, Lessor hereby leases, lets and demises to Lessee the
following described premises ("leased premises"):
8,960 (Approximate square feet)
MIDWAY PARK NORTH (Name of building or project)
00000 XXXXXX XXXX (Xxxxxx address/suite number)
XXXXXXX, XXXXX 00000 (City, State, and Zip Code)
1.03 Term. Subject to and upon the conditions set forth herein, the term of this
Lease shall commence JULY 15, 2000 (the "commencement date") (the "completion
date", which Lessor shall use its best efforts to establish as JULY 15, 2000 ),
and shall terminate JULY 31, 2003.
1.04 Base Rent and Security Deposit. Base rent is $8,960.00 per month. Security
deposit is waived.
1.05 Addresses.
LESSOR LESSEE
WHITEHALL-MIDWAY PARK NORTH, LTD. ALLSTAR SYSTEMS, INC.
P O BOX 795245 0000 XXXXXXXXX XXXXXXX
XXXXXX, XXXXX 00000 XXXXXXX, XXXXX 00000
1.06 Permitted Use. GENERAL OFFICE AND STORAGE
ARTICLE 2.00 RENT
2.01 Base Rent. Lessee agrees to pay monthly as base rent during the term of
this Lease the sum of money set forth in section 1.04 of this Lease which amount
shall be payable to Lessor at the address shown above or to such other party or
address as Lessor may from time to time designate. One monthly installment of
rent shall be due and payable on the date of execution of this Lease by Lessee
for the first month's rent and a like monthly installment shall be due and
payable on or before the first day of each calendar month succeeding the
commencement date or completion date during the term of this Lease; provided, if
the commencement date or the completion date should be a date other than the
first day of a calendar month, the monthly rental set forth above shall be
prorated to the end of that calendar month, and all succeeding installments of
rent shall be payable on or before the first day of each succeeding calendar
month during the term of this Lease. Lessee shall pay, as additional rent, all
other sums due under this Lease.
2.02 Operating Expenses. In the event Lessor's operating expenses for the
building and/or project of which the leased premises are a part shall, in any
calendar year during the term of this Lease, exceed the sum of $ 2000 BASE YEAR
per square foot, Lessee agrees to pay as additional rent Lessee's pro rata share
of such excess operating expenses. Lessor may invoice Lessee monthly for
Lessee's pro rata share of the estimated operating expenses for each calendar
year, which amount shall be adjusted each year based upon anticipated operating
expenses. Within nine months following the close of each calendar year, Lessor
shall provide Lessee an accounting showing in reasonable detail all computations
of additional rent due under this section. In the event the accounting show that
the total of the monthly payments made by Lessee exceeds the amount of
additional rent due by Lessee under this section, the accounting shall be
accompanied by a refund. In the event the accounting shows that the total of the
monthly payments made by Lessee is less than the amount of additional rent due
by Lessee under this section, the account shall be accompanied by an invoice for
the additional rent. Notwithstanding any other provision in this Lease, during
the year in which the Lease terminates, Lessor, prior to the termination date,
shall have the option to invoice Lessee for Lessee's pro rata share of the
excess operating expenses based upon the previous year's operating expenses. If
this Lease shall terminate on a day other than the last day of a calendar year,
the amount of any additional rent payable by Lessee applicable to the year in
which such termination shall occur shall be prorated on the ratio that the
number of days from the commencement of the calendar year to and including their
termination date bears to 365. Lessee shall have the right at its own expense
and within a reasonable time, to audit Lessor's books relevant to the additional
rent payable under this section. Lessee agrees to pay any additional rent due
under this section within ten days following receipt of the invoice or
accounting showing additional rent due. Notwithstanding anything to the contrary
herein, Lessor's right to recover increases in controllable expenses being
expenses other than taxes, insurance, and utilities shall be limited to five
percent (5%) per annum on a cumulative basis. There shall be no limitation on
taxes, insurance, and utilities.
2.03 Definition of Operating Expenses. The term "operating expenses" includes
all reasonable expenses incurred by Lessor with respect to the maintenance and
operation of the building of which the leased premises are a part, including,
but not limited to, the following: maintenance, repair and replacement costs;
security; management fees, wages and benefits payable to employees of Lessor
whose duties are directly connected with the operation and maintenance of the
building; all services, utilities, supplies, repairs, replacements, or other
expenses for maintaining and operating the common parking and plaza areas; the
cost, including interest, amortized over its useful life, of any capital
improvement made to the building by Lessor after the date of this Lease which is
required under any governmental law or regulation that was not applicable to the
building at the time it was constructed; the cost, including interest, amortized
over its useful life, of installation of any device or other equipment which
improves the operating efficiency of any system within the leased premises and
thereby reduces operating expenses; all other expenses which would generally be
regarded as operating and maintenance expenses which would reasonably be
amortized over a period not to exceed five years; all real property taxes and
installments of special assessments, including dues and assessments by means of
deed restrictions and/or owners' associations which accrue against the building
of which the leased premises are a part during the term of this Lease; and all
insurance premiums Lessor is required to pay or deems necessary to pay,
including public liability insurance, with respect to the building. The term
operating expenses does not include the following: repairs, restoration or other
work occasioned by fire, wind, the elements or other casualty; income and
franchise taxes of Lessor; expenses incurred in leasing to or procuring of
lessees, leasing commissions, advertising expenses and expenses for the
renovating of space for new lessees; interest or principal payments on any
mortgage or other indebtedness of Lessor; compensation paid to any employee of
Lessor above the grade of property manager; any depreciation allowance or
expense; or operating expenses which are the responsibility of Lessee.
2.04 Late Payment Charge. Other remedies for nonpayment of rent notwithstanding,
if the monthly rental payment is not received by Lessor on or before the tenth
day of the month for which the rent is due, or if any other payment due Lessor
by Lessee is not received by Lessor on or before the tenth day of the month next
following the month in which Lessee was invoiced, a late payment charge of ten
percent of such past due amount shall become due and payable in addition to such
amounts owed under this Lease.
2.05 Increase in Insurance Premiums. If an increase in any insurance premiums
paid by Lessor for the building is caused by Lessee's use of the leased premises
in a manner other than as set forth in section 1.06, or if Lessee vacates the
leased premises and causes an increase in such premiums, then Lessee shall pay
as additional rent the amount of such increase to Lessor.
2.06 Security Deposit. The security deposit set forth above shall be held by
Lessor for the performance of Lessee's covenants and obligations under this
Lease, it being expressly understood that the deposit shall not be considered an
advance payment of rental or a measure of Lessor's damage in case of default by
Lessee. Upon the occurrence of any event of default by Lessee or breach by
Lessee of Lessee's covenants under this Lease, Lessor may, from time to time,
without prejudice to any other remedy, use the security deposit to the extent
necessary to make good any arrears of rent, or to repair any damage or injury,
or pay any expense or liability incurred by Lessor as a result of the event of
default or breach of covenant, and any remaining balance of the security deposit
shall be returned by Lessor to Lessee upon termination of this Lease. If any
portion of the security deposit is so used or applied, Lessee shall upon ten
days written notice from Lessor, deposit with Lessor by cash or cashier's check
an amount sufficient to restore the security deposit to its original amount.
Lessor shall not be required to keep the security deposit separate from its
other accounts and no trust relationship is created with respect to the security
deposit. No interest shall be paid on the security deposit.
2.07 Holding Over. Lessee shall vacate the leased premises upon the expiration
of the Lease Term or earlier termination of this Lease. Lessee shall reimburse
Lessor for and indemnify Lessor against all damages incurred by Lessor as a
result of any delay by Lessee in vacating the leased premises. If Lessee does
not vacate the leased premises upon the expiration of the Lease Term or earlier
termination of the Lease, Lessee's occupancy of the leased premises shall be a
"month to month" tenancy, subject to all the terms of Lease applicable to a
month to month tenancy, except that Lessee shall pay Lessor as Base Rent for the
period of such holdover an amount equal to one and one half times the Base Rent
which would have been payable by Lessee had the holdover period been a part of
the original term of this Lease. No holding over by Lessee, whether with or
without the consent of Lessor shall operate to extend the term of this Lease.
2.08 Good Funds Payments. If, for any reason whatsoever, any two or more
payments by check from Lessee to Lessor for rent are dishonored and returned
unpaid, thereafter, Lessor may, at Lessor's sole option, upon written notice to
Lessee, require that all future payments of rent for the remaining term of the
Lease shall be made by cash, cashier's check, or money order and that the
delivery of Lessee's personal or corporate check will no longer constitute
payment of rent as provided in this Lease. Any acceptance by Lessor of a payment
for rent by Lessee's personal check thereafter shall not be construed as a
waiver of Lessor's right to insist upon payment by good funds as set forth in
this section 2.08. Furthermore, if three consecutive monthly rental payments or
any five monthly rental payments during the Lease Term (or any renewal or
extension thereof) are not received by Lessor on or before the tenth day of the
month for which such rent was due, the Base Rent hereunder shall automatically
become due and payable by Lessee in advance in quarterly installments equal to
three months' Base Rent each. The first of such quarterly Base Rent payments
shall be due an payable on the first day of the next succeeding calendar month
and on the first day of every third calendar month thereafter. This remedy shall
be cumulative of any other remedies of Lessor under this Lease for non payment
of Rent.
ARTICLE 3.00 OCCUPANCY AND USE
3.01 Use. Lessee warrants and represent to Lessor that the leased premises shall
be used and occupied only for the purpose as set forth in section 1.06. Lessee
shall occupy the leased premises, conduct its business and control its agents,
employees, invitees and visitors in such a manner as is lawful, reputable and
will not create a nuisance. Lessee shall not permit any operation which emits
any odor or matter which intrudes into other portions of the building, use any
apparatus or machine which makes undue noise or causes vibration in any portion
of the building or otherwise interfere with, annoy or disturb any other lessee
in its normal business operations or Lessor in its management of the building.
Lessee shall neither permit any waste on leased premises nor allow the leased
premises to be used in any way which would, in the opinion of Lessor, be extra
hazardous on account of fire or which would in any way increase or render void
the fire insurance on the building. If at any time during the term of this Lease
the State Board of Insurance or other insurance authority disallows any of
Lessor's sprinkler credits or imposes an additional penalty or surcharge in
Lessor's insurance premiums because of Lessee's original or subsequent placement
or use of storage racks or bins, method of storage or nature of Lessee's
inventory or any other act of Lessee, Lessee agrees to pay as additional rent
the increase (between fire walls) in Lessor's insurance premiums.
3.02 Signs. (A) Lessee shall not, without Lessor's prior written consent (a)
make any changes to or paint the store front; or (b) install any exterior
lighting, decorations or paintings; or (c) erect or install any signs, window or
door lettering, placards, decorations or advertising media of any type which can
be viewed from the exterior of the Demised Premises. All signs, decorations and
advertising media shall conform in all respects to the sign criteria established
by Lessor for the Building from time to time in the exercise of its sole
discretion, and shall be subject to the prior written approval of Lessor as to
construction, method of attachment, size, shape, height, color and general
appearance. All signs shall be kept in good condition at all times. Lessor
reserves the right to designate a uniform type of sign for the Building to be
installed and paid for by Lessee.
(B) Lessee agrees to have erected and/or installed within seven (7) days of
the Commencement Date of this Lease all signs in accordance with Lessor's sign
criteria. The Lessee, upon vacation of the Demised Premises, or the removal or
alteration of its sign for any reason, shall be responsible for the repair,
painting, and/or replacement of the building fascia surface where signs are
attached.
3.03 Compliance with Laws, Rules, and Regulations. Lessee, at Lessee's sole cost
and expense, shall comply with all laws, ordinances, orders, rules, and
regulations of state, federal, municipal or other agencies or bodies having
jurisdiction over use, condition and occupancy of the leased premises. Lessee
will comply with the rules and regulations of the building adopted by Lessor
which are set forth on a schedule attached to this Lease. Lessor shall have the
right at all times to change and amend the rules and regulations in any
reasonable manner as may be deemed advisable for the safety, care, cleanliness,
preservation of good order and operation or use of the building or the leased
premises. All changes and amendments to the rules and regulations of the
building will be sent by Lessor to Lessee in writing and shall thereafter be
carried out and observed by Lessee. Notwithstanding anything to the contrary
herein to the extent that Lessor is advised in writing by a governmental
authority that changes need to be made to the exterior of the building to comply
with the American with Disabilities Act, then Lessor shall proceed with such
changes at its sole cost and expense.
3.04 Warranty of Possession. Lessor warrants that it has the right and authority
to execute this Lease, and Lessee, upon payment of the required rents and
subject to the terms, conditions, covenants and agreements contained in this
Lease, shall have possession of the leased premises during the full term of this
Lease as well as any extension or renewal thereof. Lessor shall not be
responsible for the acts or omissions of any other lessee or third party that
may interfere with Lessee's use and enjoyment of the leased premises.
3.05 Inspection. Lessor or its authorized agents shall at any and all reasonable
times with prior notice, except in the case of an emergency, have the right to
enter the leased premises to inspect the same, to supply janitorial service or
any other service to be provided by Lessor, to show the leased premises to
prospective purchasers or lessees, and to alter, improve or repair the leased
premises or any other portion of the building. Lessee hereby waives any claim
for damages for injury or inconvenience to or interference with Lessee's
business, any loss of occupancy or use of the leased premises, and any other
loss occasioned thereby. Lessor shall at all times have and retain a key with
which to unlock all of the doors in, upon and about the leased premises. Lessee
shall not change Lessor's lock system or in any other manner prohibit Lessor
from entering the leased premises. Lessor shall have the right to use any and
all means which Lessor may deem proper to open any door in an emergency without
liability therefor.
3.06 Exemptions from Liability. Lessor shall not be liable for any damage or
injury to the person, business (or any loss of income therefrom), goods, wares,
merchandise or other property of Lessee, Lessee's employees, invitees, customers
or any other person in or about the leased premises, whether such damage or
injury is caused by results from: (a) fire, steam, electricity, water, gas or
rain; (b) the breakage, leakage, obstruction or other defects of pipes,
sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures
or any other cause; (c) conditions arising on or about the leased premises or
upon other portions of any building of which the leased premises is a part, or
from other sources or places; or (d) any act or omission of any other tenant of
any building of which the leased premises is a part. Except for Lessor's gross
negligence, Lessor shall not be liable for any such damage or injury even though
the cause of or the means of repairing such damage or injury are not accessible
to Lessee. Notwithstanding Lessor's negligence or breach of this Lease, Lessor
shall under no circumstances be liable for injury to Lessee's business or for
any loss of income or profit therefrom.
ARTICLE 4.00 UTILITIES AND SERVICE
4.01 Building Services. Lessor shall provide the normal utility service
connections to the building. Lessee shall pay the cost of all utility services,
including, but not limited to, initial connection charges, all charges for gas,
electricity, water, sanitary and storm sewer service, and for all electric
lights. However, in a multi-occupancy building, Lessor may provide water to the
leased premises, in which case Lessee agrees to pay to Lessor its pro rate share
of the cost of such water. Lessee shall pay all costs caused by Lessee
introducing excessive pollutants or solids other than ordinary human waste into
the sanitary sewer system, including permits, fees and charges levied by any
governmental subdivision for any such pollutants or solids. Lessee shall be
responsible for the installation and maintenance of any dilution tanks, holding
tanks, settling tanks, sewer sampling devices, sand traps, grease traps or
similar devices as may be required by any governmental subdivision for Lessee's
use of the sanitary sewer system. If the leased premises are in a
multi-occupancy building, Lessee shall pay all surcharges levied due to Lessee's
use of sanitary sewer or waste removal services insofar as such surcharges
affect Lessor or other lessees in the building. Lessor shall not be required to
pay for any utility services, supplies or upkeep in connection with the leased
premises or building.
4.02 Theft or Burglary. Lessor shall not be liable to Lessee for losses to
Lessee's property or personal injury caused by criminal acts or entry by
unauthorized persons into the leased premises or the building.
ARTICLE 5.00 REPAIRS AND MAINTENANCE
5.01 Property Condition. Except as otherwise provided in this Lease, Lessee
acknowledges that it has carefully inspected the Premises and that each portion
thereof is in good condition and Lessee hereby accepts the premises in their
condition existing as of the Lease commencement date or the date that Lessee
takes possession of the Premises, whichever is earlier, subject to all
applicable zoning, municipal, county and state laws, ordinances and regulations
governing and regulating the use of the Premises, and any covenants or
restrictions of record and accepts this Lease subject thereto and to all matters
disclosed thereby and by any exhibits attached hereto. Lessee acknowledges that
neither Lessor nor Lessor's agent has made any representation or warranty as to
the present or future suitability of the Premises for the conduct of Lessee's
business.
5.02 Lessor Repairs. Lessor shall not be required to make any improvements,
replacements or repairs of any kind or character to the leased premises or the
project during the term of this Lease except as are set forth in this section.
Lessor shall maintain only the roof, foundation, parking and common areas, and
the structural soundness of the exterior walls (excluding windows, windowglass,
plate glass and doors). Lessor's costs of maintaining the items set forth in
this section are subject to the additional rent provisions in section 2.02.
Lessor shall not be liable to Lessee, except as expressly provided in this
Lease, for any damage or inconvenience, and Lessee shall not be entitled to any
abatement or reduction of rent by reason of any repairs, alterations or
additions made by Lessor under this Lease.
5.03 Lessee Repairs. Lessee shall, at its sole cost and expense, maintain,
repair and replace all other parts of the leased premises in good repair and
condition, including, but not limited to, heating, ventilating and air
conditioning systems, down spouts, fire sprinkler system, dock bumpers, interior
pest control and extermination. Lessee shall repair and pay for any damage
caused by any act or omission of Lessee or Lessee's agents, employees, invitees,
licensees or visitors. If the leased premises are in a multi-occupancy building
or project, Lessor reserves the right to perform, on behalf of Lessee, lawn
maintenance, painting, trash pick-up and removal; Lessee agrees to pay Lessor,
as additional rent, Lessee's pro rata share of the cost of such services within
ten days from receipt of Lessor's invoice, or Lessor may by monthly invoice
direct Lessee to prepay the estimated costs for the current calendar year, and
such amount shall be adjusted annually. If the leased premises are served by
rail, Lessee agrees, if requested by the railroad, to enter into a joint
maintenance agreement with the railroad and bear its pro rata share of the cost
of maintaining the railroad spur. If Lessee fails to make the repairs or
replacements promptly as required herein, Lessor may, at its option, make the
repairs and replacements and the cost of such repairs and replacements shall be
charged to Lessee as additional rent and shall become due and payable by Lessee
within ten days from receipt of Lessor's invoice. Costs incurred under this
section are the total responsibility of Lessee and do not constitute operating
expenses under section 2.02.
5.04 Request for Repairs. All requests for repairs or maintenance that are the
responsibility of Lessor pursuant to any provision to this Lease must be made in
writing to Lessor at the address in section 1.05.
5.05 Lessee Damages. Lessee shall not allow any damage to be committed on any
portion of the leased premises or building, and at the termination of this
Lease, by lapse of time or otherwise, Lessee shall deliver the leased premises
to Lessor in as good condition as existed at the commencement date of this
Lease, ordinary wear and tear excepted. The cost and expense of any repairs
necessary to restore the condition of the leased premises shall be borne by
Lessee.
5.06 Maintenance Contract. Lessee shall, at its sole cost and expense, during
the term of this Lease maintain a regularly scheduled preventative
maintenance/service contract with a maintenance contractor for the servicing of
all hot water, heating and air conditioning systems and equipment within the
leased premises. The maintenance contractor and contract must be approved by
Lessor and must include monthly servicing, replacement of filters, replacement
or adjustment of drive belts, periodic lubrication and oil change and any other
services suggested by the equipment manufacturer.
ARTICLE 6.00 ALTERATIONS AND IMPROVEMENTS
6.01 Lessor Improvements. If construction to the leased premises is to be
performed by Lessor prior to or during Lessee's occupancy, Lessor will complete
the construction of the improvements to the leased premises, in accordance with
plans and specifications agreed to by Lessor and Lessee, which plans and
specifications are made a part of this Lease by reference. Lessee shall execute
a copy of the plans and specifications and change orders, if applicable, setting
forth the amount of any costs to be borne by Lessee within seven days of receipt
of the plans and specifications. In the event Lessee fails to execute the plans
and specifications and change order within the seven day period, Lessor may, at
its sole option, declare this Lease cancelled or notify Lessee that the base
rent shall commence on the completion date even though the improvements to be
constructed by Lessor may not be complete. Any changes or modifications to the
approved plans and specifications shall be made and accepted by written change
order or agreement signed by Lessor and Lessee and shall constitute an amendment
to this Lease.
6.02 Lessee Improvements. Lessee shall not make or allow to be made any
alterations or physical additions in or to the leased premises without first
obtaining the written consent of Lessor, which consent shall not be unreasonably
withheld. Any alterations, physical additions or improvements of the leased
premises made by Lessee shall at once become the property of Lessor and shall be
surrendered to Lessor upon the termination of this Lease; provided, however,
Lessor, at its option, may require Lessee to remove any physical additions
and/or repair any alterations in order to restore the leased premises to the
condition existing at the time Lessee took possession, all costs of removal
and/or alterations to be borne by Lessee. This clause shall not apply to
moveable equipment or furniture owned by Lessee, which may be removed by Lessee
at the end of the term of this Lease if Lessee is not then in default and if
such equipment and furniture are not then subject to any other rights, liens,
and interest of Lessor.
6.03 Mechanics Lien. Lessee will not permit any mechanic's or materialman's
lien(s) or other lien to be placed upon the leased premises or the building and
nothing in this Lease shall be deemed or construed in any way as constituting
the consent or request of Lessor, express or implied, by inference or otherwise,
to any person for the performance of any labor or the furnishing of any
materials to the leased premises, or any part thereof, nor as giving Lessee any
right, power, or authority to contract for or permit the rendering of any
services or the furnishing of any materials that would give rise to any
mechanic's, materialman's or other lien against the leased premises. In the
event any such lien is attached to the leased premises, then, in addition to any
other right or remedy of Lessor, Lessor may, but shall not be obligated to,
obtain the release of or otherwise discharge the same. Any amount paid by Lessor
for any of the aforesaid purposes shall be paid by Lessee to Lessor on demand as
additional rent.
ARTICLE 7.00 CASUALTY AND INSURANCE
7.01 Substantial Destruction. If the leased premises should be totally destroyed
by fire or other casualty, or if the leased premises should be damaged so that
rebuilding cannot reasonably be completed within one hundred eighty working days
after the date of written notification by Lessee to Lessor of the destruction,
this Lease shall terminate and the rent shall be abated for the unexpired
portion of the Lease, effective as of the date of the written notification.
7.02 Partial Destruction. If the leased premises should be partially damaged by
fire or other casualty, and rebuilding or repairs can reasonably be completed
within one hundred eighty working days from the date of written notification by
Lessee to Lessor of the destruction, this Lease shall not terminate, and Lessor
shall at its sole risk and expense proceed with reasonable diligence to rebuild
or repair the building or other improvements to substantially the same condition
in which they existed prior to the damage. If the leased premises are to be
rebuild or repaired and are untenantable in whole or in part following the
damage, and the damage or destruction was not caused or contributed to by act or
negligence of Lessee, its agents, employees, invitees or those for whom Lessee
is responsible, the rent payable under this Lease during the period for which
the leased premises are untenantable shall be adjusted to such an extent as may
be fair and reasonable under the circumstances. In the event that Lessor fails
to complete the necessary repairs or rebuilding within one hundred eighty
working days from the date of written notification by Lessee to Lessor of the
destruction, Lessee may at its option terminate this Lease by delivering written
notice of termination to Lessor, whereupon all rights and obligations under this
Lease shall cease to exist.
7.03 Property Insurance. Lessor shall at all times during the term of this Lease
maintain a policy or policies of insurance, issued by and binding upon some
insurance company, insuring the building against all perils included within the
classification of fire and extended coverage and any other perils which Lessor
deems necessary in such amount as Lessor deems reasonable in relation to the
age, location, type of construction and physical condition of the building and
the availability of such insurance at reasonable rates; provided, Lessor shall
not be obligated in any way or manner to insure any personal property
(including, but not limited to, any furniture, machinery, goods or supplies) of
Lessee upon or within the leased premises, any fixtures installed or paid for by
Lessee upon or within the leased premises, or any improvements which Lessee may
construct on the leased premises. Lessee shall have no right in or claim to the
proceeds of any policy of insurance maintained by Lessor even though the cost of
such insurance is borne by Lessee as set forth in Article 2.00. Lessee shall, at
Lessee's expense, maintain such primary or additional insurance on its
inventory, fixtures, equipment, and building improvements as Lessee deems
necessary to protect its interest. Lessee shall not do or permit to be done
anything which invalidates any such insurance policies.
7.04 Liability Insurance. Lessee, at its own expense, shall maintain during the
term of this Lease a policy or policies of comprehensive general liability
insurance, including personal injury and property damage, with contractual
liability endorsement, in the amount of One Million Dollars ($1,000,000.00) for
property damage and One Million Dollars ($1,000,000.00) per occurrence for
bodily injuries, personal injuries or deaths of person occurring in or about the
Premises. Said policies shall (i) name Lessor as an additional insured and
insure Lessor's contingent liability under this Lease, (ii) be issued by an
insurance company which is acceptable to Lessor, and (iii) provide that said
insurance shall not be cancelled unless thirty (30) days prior written notice
shall have been given to Lessor. Said policy or policies or certificates thereof
shall be delivered to Lessor by Lessee upon commencement of the term of the
Lease and upon each renewal of said insurance.
7.05 Waiver of Subrogation. Anything in this Lease to the contrary
notwithstanding, Lessor and Lessee hereby waive and release each other of and
from any and all right of recovery, claim, action or cause of action, against
each other, their agents, officers, and employees, for any loss or damage that
may occur to the leased premises, improvements to the building of which the
leased premises are a part, or personal property within the building, by reason
of fire or the elements, regardless of cause or origin, including negligence of
Lessor or Lessee and their agents, officers and employees. Lessor and Lessee
agree immediately to give their respective insurance companies which have issued
policies of insurance covering all risk of direct physical loss, written notice
of the terms of the mutual waivers contained in this section, and to have the
insurance policies properly endorsed, if necessary, to prevent the invalidation
of the insurance coverages by reason of the mutual waivers.
7.06 Hold Harmless. Lessor shall not be liable to Lessee or to Lessee's
employees, agents, invitees, licensees or visitors, or to any other person, for
an injury to person or damage to property on or about the leased premises caused
by any act or omission of Lessee, its agents, servants or employees, or of any
other person entering upon the leased premises under express or implied
invitation by Lessee, or caused by the improvements located on the leased
premises becoming out of repair, the failure or cessation of any service
provided by Lessor (including security service and devices), or caused by
leakage of gas, oil, water or steam or by electricity emanating from the leased
premises. Lessee agrees to indemnify and hold harmless Lessor of and from any
loss, attorney's fees, expenses or claims arising out of any such damage or
injury.
ARTICLE 8.00 CONDEMNATION
8.01 Substantial Taking. If all or substantial part of the leased premises are
taken for any public or quasi-public use under any governmental law, ordinance
or regulation, or by right of eminent domain or by purchase in lieu thereof, and
the taking would prevent or materially interfere with the use of the leased
premises for the purpose for which it is then being used, this Lease shall
terminate and the rent shall be abated during the unexpired portion of this
Lease effective on the date physical possession is taken by the condemning
authority. Lessee shall have no claim to the condemnation award or proceeds in
lieu thereof.
8.02 Partial Taking. If a portion of the leased premises shall be taken for any
public or quasi-public use under any governmental law, ordinance or regulation,
or by right of eminent domain or by purchase in lieu thereof, and this Lease is
not terminated as provided in section 8.01 above, Lessor shall at Lessor's sole
risk and expense, restore and reconstruct the building and other improvements on
the leased premises to the extent necessary to make it reasonably tenantable.
The rent payable under this Lease during the unexpired portion of the term shall
be adjusted to such an extent as may be fair and reasonable under the
circumstances. Lessee shall have no claim to the condemnation award or proceeds
in lieu thereof.
ARTICLE 9.00 ASSIGNMENT OR SUBLEASE
9.01 Lessor Assignment. Lessor shall have the right to sell, transfer or assign,
in whole or in part, its rights and obligations under this Lease and in the
building. Any such sale, transfer or assignment shall operate to release Lessor
from any and all liabilities under this Lease arising after the date of such
sale, assignment or transfer.
9.02 Lessee Assignment. Lessee shall not assign, in whole or in part, this
Lease, or allow it to be assigned, in whole or in part, by operation of law or
otherwise (including without limitation by transfer of a majority interest of
stock, merger, or dissolution, which transfer of majority interest of stock,
merger or dissolution shall be deemed an assignment) or mortgage or pledge the
same, or sublet the leased premises, in whole or in part, without the prior
written consent of Lessor which consent shall not be unreasonably withheld, and
in no event shall any such assignment or sublease ever release Lessee or any
guarantor from any obligation or liability hereunder. No assignee or sublessee
of the leased premises or any portion thereof may assign or sublet the leased
premises or any portion thereof.
9.03 Conditions of Assignment. If Lessee desires to assign or sublet all or any
part of the leased premises, it shall so notify Lessor at least thirty days in
advance of the date on which Lessee desires to make such assignment or sublease.
Lessee shall provide Lessor with a copy of the proposed assignment or sublease
and such information as Lessor might request concerning the proposed sublessee
or assignee to allow Lessor to make informed judgments as to the financial
condition, reputation, operations and general desirability of the proposed
sublessee or assignee. Within five (5) days after Lessor's receipt of Lessee's
proposed assignment of sublease and all required information concerning the
proposed sublessee or assignee, Lessor shall have the following options: (1)
cancel this Lease as to the leased 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,
Lessee shall pay to Lessor all such excess rent and other excess consideration
within ten days following receipt thereof by Lessee: or (3) refuse, in its sole
and absolute discretion and judgment, to consent to the proposed assignment or
sublease; Lessor will give Lessee written notice of refusal within ten (10) days
after receipt of all documentation. Upon the occurrence of an event of default,
if all or any part of the leased premises are then assigned or sublet, Lessor 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 Lessee by reason of the assignment or sublease, and Lessor shall
have a security interest in all properties on the leased premises to secure
payment of such sums. Any collection directly by Lessor from the assignee or
sublessee shall not be construed to constitute a novation or a release of Lessee
or any guarantor from the further performance of its obligations under this
Lease.
9.04 Subordination. Lessee accepts this Lease subject and subordinate to any
recorded mortgage or deed of trust lien presently existing or hereafter created
upon the building or project and to all existing recorded restrictions,
covenants, easements and agreements with respect to the building or project.
Lessor is hereby irrevocably vested with full power and authority to subordinate
Lessee's interest under this Lease to any first mortgage or deed of trust lien
hereafter placed on the leased premises, and Lessee agrees upon demand to
execute additional instruments subordinating this Lease as Lessor may require.
If the interests of Lessor under this Lease shall be transferred by reason of
foreclosure or other proceedings for enforcement of any first mortgage or deed
of trust lien on the leased premises, Lessee shall be bound to the transferee
(sometimes called the "Purchaser") at the option of the Purchaser, under the
terms, covenants and conditions of this Lease for the balance of the term
remaining, including any extensions or renewals, with the same force and effect
as if the Purchaser were Lessor under this Lease, and, if requested by the
Purchaser, Lessee agrees to attorn to the Purchaser, including the first
mortgage under any such mortgage if it be the Purchaser, as its Lessor.
9.05 Estoppel Certificates. Lessee agrees to furnish, from time to time, within
ten days after receipt of a request from Lessor or Lessor's mortgagee, a
statement certifying, if applicable, the following: Lessee is in possession of
the leased premises; the leased premises are acceptable; the Lease is in full
force and effect; the Lease in unmodified; Lessee claims no present charge,
lien, or claim of offset against rent; the rent is paid for the current month,
but is not prepaid for more than one month and will not be prepaid for more than
one month in advance; there is no existing default by reason of some act or
omission by Lessor; and such other matters as may be reasonably required by
Lessor or Lessor's mortgagee. Lessee's failure to deliver such statement, in
addition to being a default under this Lease, shall be deemed to establish
conclusively that this Lease is in full force and effect except as declared by
Lessor, that Lessor is not in default of any of its obligations under this
Lease, and that Lessor has not received more than one month's rent in advance.
9.06 Lessee's Financial Condition. Within ten (10) days after written request
from Lessor, Lessee shall deliver to Lessor such financial statements as are
reasonably required by Lessor to verify the net worth of Lessee, or any
assignee, or guarantor of Lessee. In addition Lessor shall deliver to any lender
designated by Lessor any financial statements required by such lender to
facilitate the financing or refinancing of the leased premises. Lessee
represents and warrants to Lessor that each such financial statement is a true,
complete, and accurate statement as of the date of such statement. All financial
statements shall be confidential and shall be used only for the purposes set
forth herein.
ARTICLE 10.00 LIENS
10.01 Landlord's Lien. As security for payment of rent, damages and all other
payments required to be made by this Lease, Lessee hereby grants to Lessor a
lien upon all property of Lessee now or subsequently located upon the leased
premises. If Lessee abandons or vacates any substantial portion of the leased
premises or is in default in the payment of any rentals, damages or other
payments required to be made by this Lease or is in default of any other
provision of this Lease, Lessor may enter upon the leased premises, by picking
or changing locks if necessary, and take possession of all or any part of the
personal property, and may sell all or any part of the personal property at a
public or private sale, in one or successive sales, with or without notice, to
the highest bidder for cash, and, on behalf of Lessee, sell and convey all or
part of the personal property to the highest bidder, delivering to the highest
bidder all of Lessee's title and interest in the personal property sold. The
proceeds of the sale of the personal property shall be applied by Lessor toward
the reasonable costs and expenses of the sale, including attorney's fees, and
then toward the payment of all sums then due by Lessee to Lessor under the terms
of this Lease. Any excess remaining shall be paid to Lessee or any other person
entitled thereto by law. Notwithstanding anything to the contrary herein, Lessor
agrees to execute a Waive of Landlord's Lien in favor of a financial institution
providing financing to Lessee substantially in the form of Exhibit B attached
hereto and made a part hereof.
10.02 Uniform Commercial Code. This Lease is intended as and constitutes a
security agreement within the meaning of the Uniform Commercial Code of the
state in which the leased premises are situated. Lessor, in addition to the
rights prescribed in this Lease, shall have all of the rights, titles, liens and
interests in and to Lessee's property, now or hereafter located upon the leased
premises, which may be granted a secured party, as that term is defined, under
the Uniform Commercial Code to secure to Lessor payment of all sums due and the
full performance of all Lessee's covenants under this Lease. Lessee will on
request execute and deliver to Lessor a financing statement for the purpose of
perfecting Lessor's security interest under this Lease or Lessor may file this
Lease or a copy thereof as a financing statement. Unless otherwise provided by
law and for the purpose of exercising any right pursuant to this section, Lessor
and Lessee agree that reasonable notice shall be met if such notice is given by
ten days written notice, certified mail, return receipt requested, to Lessor or
Lessee at the addresses specified herein.
ARTICLE 11.00 DEFAULT AND REMEDIES
11.01 Default by Lessee. The following shall be deemed to be events of default
by Lessee under this Lease; (1) Lessee shall fail to pay when due any
installment of rent or any other payment required pursuant to this Lease; (2)
Lessee shall vacate the leased premises; (3) Lessee shall fail to comply with
any term, provision or covenant of this Lease, other than the payment of rent,
and the failure is not cured within thirty days after written notice to Lessee;
(4) Lessee shall file a petition or be adjudged bankrupt or insolvent under any
applicable federal or state bankruptcy or insolvency law or admit that it cannot
meet its financial obligations as they become due; or a receiver or trustee
shall be appointed for all or substantially all of the assets of Lessee; or
Lessee shall make a transfer in fraud of creditors or shall make an assignment
for the benefit of creditors; or (5) Lessee shall do or permit to be done any
act which results in a lien being filed against the leased premises or the
building and/or project of which the leased premises are a part.
11.02 Remedies for Lessee's Default. Upon the occurrence of any event of default
set forth in this Lease, Lessor shall have the option to pursue any one or more
of the following remedies without any notice or demand whatsoever:
(a) Lessor may terminate this Lease. If Lessor elects to terminate this
Lease, then Lessee shall immediately surrender the leased premises to Lessor and
shall be liable for and shall pay to Lessor the sum of all rent and other
indebtedness accrued to the date of such termination plus, as damages, an amount
equal to the total of (i) the cost of recovering the leased premises, (ii) the
cost of removing and storing Lessee's and other occupants' property located
therein, (iii) the cost of reletting the leased premises, or a portion thereof,
whether or not accomplished in one or more phases (including, without
limitation, brokerage commissions), (iv) the cost of decorations, repairs,
changes, alterations, and additions to the leased premises, (v) the cost of
collecting such amounts from Lessee hereunder, and (vi) any other sums of money
or damages that may be owed to Lessor as the result of a default by Lessee or
the exercise of Lessor's rights at law or in equity.
(b) Lessor may terminate Lessee's rights to occupy the leased premises
without terminating this Lease. If Lessor elects to terminate Lessee's right to
occupy the leased premises, Lessee shall remain liable for the payment of the
total rent due under this Lease for the remainder of the term of this Lease. In
addition, Lessee shall be liable for and shall pay to Lessor, on demand, an
amount equal to the costs described in subsection 11.02(a) above. Lessor may
file suit to recover any sums falling due under the terms hereof from time to
time, and no delivery to or recovery by Lessor of any portion of the sums due
Lessor hereunder shall be a defense in any action to recover any amount not
theretofore reduced to judgment and/or collected by Lessor. Lessor shall not be
obligated to relet the leased premises before leasing other portions of the
building, it being the intent of the parties that Lessee shall not be placed in
a preferential position by reason of Lessee's own default. Any sums received by
Lessor through reletting shall reduce the sums owing by Lessee hereunder, but in
no event shall Lessee be entitled to any excess of any sums obtained by
reletting over and above the rent to be paid by Lessee under this Lease. In the
alternative, Lessor may elect to immediately recover, as damages, a sum equal to
the difference between (i) the total rent due under this Lease for the remainder
of the Lease term and (ii) the then fair market rental value of the leased
premises during such period, discounted to present value at a rate determined by
Lessor, in its sole discretion ("Discounted Future Rent"). In such event, Lessor
shall have no responsibility whatsoever to attempt to relet the leased premises
or to apply any rentals received by Lessor as a result of any such reletting to
Lessee's obligations hereunder; and the aggregate amount of all damages due to
Lessor, including the Discounted Future Rent, shall be immediately due and
payable to Lessor upon demand.
(c) Lessor may enter upon the leased premises and do whatever Lessee is
obligated to do under the terms of this Lease without terminating this Lease or
terminating Lessee's right to occupy the leased premises. In such event, Lessee
shall reimburse Lessor on demand for any expenses which Lessor may incur in
affecting compliance with Lessee's obligations under this Lease, and Lessor
shall not be liable for any damages resulting to Lessee from such action.
(d) Lessor may exercise all of the remedies available to Lessor at law or
in equity, including, without limitation, injunctive relief of all varieties.
The provisions of this Section 11.02 shall be enforceable to the maximum extent
not prohibited by applicable law, and the unenforceability of any portion
thereof shall not thereby render unenforceable any other portion. No act or
thing done by Lessor or its agents during the Lease term shall be deemed to be
an acceptance of an attempted surrender of the leased premises, and no agreement
to accept the surrender of the leased premises shall be valid unless made in
writing and signed by Lessor. No re-entry or taking possession of the leased
premises by Lessor (including a termination of Lessee's right to occupy the
leased premises or a reletting subsequent to such election) shall be construed
as an election on Lessor's part to terminate this Lease unless a written notice
of such termination is given to Lessee. The failure of Lessor to insist at any
time upon the strict performance of any covenant or agreement herein or to
exercise any option, right, power, or remedy contained in this Lease shall not
be construed as a waiver or a relinquishment thereof for the future. No payment
by Lessee or receipt by Lessor of a lesser amount than the amount then due under
this Lease shall be deemed to be other than on account of the earliest
obligation of Lessee due hereunder, nor shall endorsement or statement on any
check or any letter accompanying any check or payment be deemed an accord and
satisfaction. Lessor may accept any such check or payment without prejudice to
Lessor's right to recover the balance of such obligation of Lessee or pursue any
other remedy provided in this Lease. All rights, privileges, and remedies
afforded Lessor by this Lease or by law shall be deemed cumulative, and the
exercise of any one of such rights, privileges, or remedies shall not be deemed
to be a waiver of any other right, privilege, or remedy provided for herein or
granted by law or in equity, except as may otherwise be expressly provided
pursuant to the terms of this Lease. In the event Lessor elects to terminate
this Lease or terminate Lessee's right to occupy the leased premises after a
default by Lessee, Lessor may, without prejudice to any other remedy which
Lessor may have, expel or remove Lessee and any other person who may be
occupying the leased premises or any part thereof. In addition, Lessor may
change or alter the locks and other security devices on the doors to the leased
premises; and Lessee hereby waives, to the fullest extent allowed by law, any
requirement that notice be posted on the leased premises as to the location of a
key to such new locks and any right to obtain such a key. In addition, to all of
the remedies set forth herein, Lessor shall, if applicable, be entitled to
receive a cash payment from Lessee on demand in an amount equal to all
"Reimbursable Costs" (as defined below) which have not yet vested in Lessee and
to terminate any remaining Lease concessions which have not yet accrued under
this Lease. As used herein, the term "Reimbursable Costs" shall mean the total
of (i) the difference between the average rent payable by Lessee over the entire
term of this Lease and the rate of rent payable by Lessee from the commencement
date to the date of default and (ii) the aggregate dollar amount which had been
paid by Lessor in connection with this Lease, including, without limitation,
amounts reimbursed to Lessee or paid on behalf of Lessee under this Lease and
any brokerage commission paid or payable by Lessor in connection with the
execution of this Lease. Because the Reimbursable Costs were incurred by Lessor
in reliance upon Lessee's fully performing Lessee's obligations under this
Lease, Lessee hereby acknowledges that Lessor will be damaged, upon a default by
Lessee, in an amount equal to the aggregate dollar value of the Reimbursable
Costs which have not yet vested in Lessee. Lessee shall vest as to Reimbursable
Costs on a pro rata basis for each calendar month during the Lease term for
which Lessee has paid rent and is not otherwise in default hereunder. No vesting
shall occur with respect to any month for which Lessee has not paid rent or for
which Lessee is otherwise in default hereunder.
11.03 Notice of Default. Lessee shall give written notice of any failure by
Lessor to perform any of its obligations under this Lease to Lessor and to any
ground lessor, mortgagee or beneficiary under any deed of trust encumbering the
Leased Premises whose name and address have been furnished to Lessee in writing.
Lessor shall not be in default under this Lease unless Lessor (or such ground
lessor, mortgagee or beneficiary) fails to cure such nonperformance within
thirty (30) days after receipt of Lessee's notice. However, if such
nonperformance reasonably requires more than thirty (30) days to cure, Lessor
shall not be in default if such cure is commenced within such 30-day period and
thereafter diligently pursued to completion.
ARTICLE 12.00 RELOCATION
INTENTIONALLY DELETED
ARTICLE 13.00 DEFINITIONS
13.01 Act of God or Force Majeure. An "act of God" or "force majeure" is defined
for purposes of this Lease as strikes, lockouts, sitdowns, material or labor
restrictions by any governmental authority, unusual transportation delays,
riots, floods, washouts, explosions, earthquakes, fire, storms, weather
(including wet grounds or inclement weather which prevents construction), acts
of public enemy, wars, insurrections and any other cause not reasonably within
the control of Lessor and which by the exercise of due diligence Lessor is
unable, wholly or in part, to prevent or overcome.
13.02 Building or Project. "Building" or "project" as used in this Lease means
the building and/or project described in section 1.02, including the leased
premises and the land upon which the building or project is situated.
13.03 Commencement Date. "Commencement date" shall be the date set forth in
section 1.03. The commencement date shall constitute the commencement of the
term of this Lease for all purposes, whether or not Lessee has actually taken
possession.
13.04 Delay in Possession. Notwithstanding said commencement date, if for any
reason Lessor cannot deliver possession of the Premises to Lessee on said date,
Lessor shall not be subject to any liability therefor, nor shall such failure
affect the validity of this Lease or the obligations of Lessee hereunder or
extend the term hereof, but in such case Lessee shall not be obligated to pay
rent or perform any other obligation of Lessee under the terms of this Lease,
except as may be otherwise provided in this Lease, until possession of the
Premises is tendered to Lessee provided however, that if Lessor shall not have
delivered possession of the Premises within one hundred and twenty (120) days
from said commencement date, Lessee may at Lessee's option, by notice in writing
to Lessor within ten (10) days thereafter, cancel this Lease in which event the
parties shall be discharged from all obligations hereunder; provided further,
however, that if such written notice of Lessee is not received by Lessor within
said ten (10) day period, Lessee's right to cancel this Lease hereunder shall
terminate and be of no further force or effect.
13.05 Early Possession. Notwithstanding the commencement date of this Lease,
Lessee shall have the right to occupy the space from completion of Lessor's
work. If Lessee occupies the Premises prior to said commencement date, such
occupancy shall be subject to all provisions of this Lease, and such occupancy
shall not advance the termination date. Unless provided otherwise herein, Lessee
shall pay base rent and all other charges specified in this Lease for the period
of occupancy.
13.06 Completion Date. "Completion date" shall be the date on which the
improvements erected and to erected upon the leased premises shall have been
"substantially completed" in accordance with the plans and specifications
described in Article 6.00. The completion date shall constitute the commencement
of the term of this Lease for all purposes, whether or not Lessee has actually
taken possession. Lessor shall use its best efforts to establish the completion
date as the date set forth in section 1.03. In the event that the improvements
have not in fact been completed as of that date, Lessee shall notify Lessor in
writing of its objections. Lessor shall have a reasonable time after delivery of
the notice in which to take such corrective action as may be necessary and shall
notify Lessee in writing as soon as it deems such corrective action has been
completed and the improvements are ready for occupancy. Upon completion of
construction, Lessee shall deliver to Lessor a letter accepting the leased
premises as suitable for the purposes for which they are let and the date of
such letter shall constitute the commencement of the term of this Lease. Whether
or not Lessee has executed such letter of acceptance, taking possession of the
leased premises by Lessee shall be deemed to establish conclusively that the
improvements have been completed in accordance with the plans and
specifications, are suitable for the purposes for which the leased premises are
let, and that the leased premises are in good and satisfactory condition as of
the date possession was so taken by Lessee, except for latent defects, if any.
As used herein, the term "substantially completed" shall mean such improvements
have been completed in accordance with the Plans and Specifications and the
Premises are in good condition, subject only to completion of minor punch list
items. A certificate by Lessor's architect that the work has been substantially
completed shall be final and binding upon the Lessor and Lessee.
13.07 Square Feet. "Square feet" or "square foot" as used in this Lease includes
the area contained within the leased premises together with a common area
percentage factor of the leased premises proportionate to the total building
area. Lessee hereby acknowledges that it has carefully inspected the leased
premises in the building forming the subject of the Lease and agrees that said
leased premises comprise approximately the square footage in section 1.02.
Should it ever be determined that the building is larger or smaller than said
square footage, neither party shall have any right, claim or action against the
other by reason of that fact.
ARTICLE 14.00 ENVIRONMENTAL REPRESENTATIONS AND INDEMNITY
14.01 Hazardous Materials.
A. Hazardous Material Upon Premises Prohibited.
Lessee shall not cause or permit any Hazardous Material (as defined in
Paragraph 14.01) to be released, brought upon, stored, produced, disposed or
used upon, about or beneath the Premises by Lessee, its agents, employees,
contractors or invitees.
B. Indemnification of Lessor for Environmental Damages.
Lessee shall indemnify, defend and hold Lessor harmless from and against
any and all Environmental Damages which arise from (1) the presence upon, about
or beneath the Premises of any "Hazardous Materials" (as defined in this Lease)
or of any chemical substance requiring remediation under any federal, state or
local statute, regulation, ordinance or policy; or (2) the breach of any of the
provisions of this Lease. For the purpose of this Lease, "Environmental Damages"
shall mean (a) All claims, judgments, damages, penalties, fines, costs,
liabilities and losses (including, without limitation, diminutive in the value
of the Premises, damages for the loss of or restriction on use of rentable space
or any amenity of the Premises and from any service rentable or usable space or
of any amenity of the Premises and from any adverse impact on Lessor's marketing
of space); (b) All sums paid for settlement of claims, attorney's fees,
consultant's fees and expert's fees; and (c) All costs incurred by Lessor in
connection with investigation of Hazardous Material (as defined in this Lease)
upon, about or beneath the Premises, the preparation of any feasibility studies
or reports and the performance of any clean-up, remediation, removal or
governmental agency or political subdivision necessary for Lessor to make full
economic use of the Premises, or otherwise required under this Lease. Lessee's
obligation under this Section shall survive the expiration of this Lease.
C. Obligation of Lessee to Remediate Premises.
Notwithstanding the obligation of Lessee to indemnify Lessor pursuant to
this Lease, Lessee shall, at its sole cost and expense, promptly take all
actions required by any federal, state or local governmental agency or political
subdivision or necessary for Lessor to make full economic use of the Premises,
which requirements or necessity arise from the presence upon, about or beneath
the Premises of any Hazardous Materials (as defined in this Lease), provided
that the introduction of such Hazardous Materials shall have originated during
the term of this Lease. Such actions shall include, but not be limited to, the
investigation of the environmental condition of the Premises, the preparation of
any feasibility studies or reports and the performance of any clean-up,
remedial, removal or restoration work. Lessee shall take all actions necessary
to restore the Premises to the condition existing prior to the introduction of
the Hazardous Material upon, about or beneath the Premises, notwithstanding any
lesser standard of remediation allowable under applicable law or governmental
policies. Lessee shall nevertheless obtain Lessor's approval prior to
undertaking any activities required by this Section, which approval shall not be
unreasonably withheld so long as such actions would not potentially have a
material adverse long-term or short-term effect on the Premises. The obligations
of Lessee pursuant to this Section shall not apply to situations where Hazardous
Materials are released, brought upon, stored, produced, emitted, disposed of or
used upon, about or beneath the Premises at a time or times other than during
the term of this Lease except where its agents, employees, contractors or
invitees or as a result of the acts or omissions of any agent, employee,
contractor or invitee of any permitted sublessee or assignee of Lessee, Lessee's
obligations under this Section shall survive the expiration of this Lease.
D. "Hazardous Material" Defined.
"Hazardous Material" means any material or substance (1) defined as a
hazardous substance pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act (42 U.S.C. Section 9601 et seq.) and amendments
thereto and regulations promulgated thereunder; (2) containing gasoline, oil,
diesel fuel or other petroleum products; (3) defined as a "hazardous waste"
pursuant to the Federal Resource Conservation and Recovery Act (42 U.S.C.
Section 9601 et. seq.) and amendments thereto and regulations promulgated
thereunder; (4) containing polychlorinated biphenyls (PCB's) (5) containing
asbestos; (6) radioactive; (7) biological or (8) the presence of which requires
investigation or remediation under any federal, state or local statue,
regulation, ordinance or policy or which is or becomes defined as a "hazardous
waste" or "hazardous substance" under any federal, state or local statue,
regulation or ordinance and any toxic explosive, corrosive or otherwise
hazardous substance, material or waste which is or becomes regulated by any
federal, state or local governmental authority, or which causes a nuisance upon
or waste to the Premises.
ARTICLE 15.00 MISCELLANEOUS
15.01 Waiver. Failure of Lessor to declare an event of default immediately upon
its occurrence, or delay in taking any action in connection with an event of
default, shall not constitute a waiver of the default, but Lessor shall have the
right to declare the default at any time and take such action as is lawful or
authorized under this Lease. Pursuit of any one or more of the remedies set
forth in Article 11.00 above shall not preclude pursuit of any one or more of
the other remedies provided elsewhere in this Lease or provided by law, nor
shall pursuit of any remedy constitute forfeiture or waiver of any rent damages
accruing to Lessor by reason of the violation of any of the terms, provisions or
covenants of this Lease. Failure by Lessor to enforce one or more of the
remedies provided upon an event of default shall not be deemed or construed to
constitute a waiver of the default or of any other violation or breach of any of
the terms, provisions and covenants contained in this Lease.
15.02 Act of God. Lessor shall not be required to perform any covenant or
obligation in this Lease, or be liable in damages to Lessee, so long as the
performance or non-performance of the covenant or obligation is delayed, caused
or prevented by an act of God, force majeure or by Lessee.
15.03 Attorney's Fees. In the event either party defaults in the performance of
any of the terms, covenants, agreements or conditions contained in this Lease
and the other party places in the hands of an attorney the enforcement of all or
any part of this Lease, the collection of any rent due or to become due or
recovery of the possession of the leased premises, the non prevailing party
agrees to pay the prevailing party's costs of collection, including reasonable
attorney's fees for the services of the attorney.
15.04 Successors. This Lease shall be binding upon and inure to the benefit of
Lessor and Lessee and their respective heirs, personal representatives,
successors and assigns. It is hereby covenanted and agreed that should Lessor's
interest in the leased premises cease to exist for any reason during the term of
this Lease, then notwithstanding the happening of such event this Lease
nevertheless shall remain unimpaired and in full force and effect, and Lessee
hereunder agrees to attorn to the then owner of the leased premises.
15.05 Rent Tax. If applicable in the jurisdiction where the leased premises are
situated, Lessee shall pay and be liable for all rental, sales and use taxes or
other similar taxes, if any, levied or imposed by any city, state, county, or
other governmental body having authority, such payments to be in addition to all
other payments required to be paid to Lessor by Lessee under the terms of this
Lease. Any such payment shall be paid concurrently with the payment of the rent,
additional rent, operating expenses or other charge upon which the tax is based
as set forth above.
15.06 Captions. The captions appearing in this Lease are inserted only as a
matter of convenience and in no way define, limit, construe or describe the
scope or intent of any section.
15.07 Notice. All rent and other payments required to be made by Lessee shall be
payable to Lessor at the address set forth in section 1.05. All payments
required to be made by Lessor to Lessee shall be payable to Lessee at the
address set forth in section 1.05, or at any other address within the United
States as Lessee may specify from time to time by written notice. Any notice or
document required or permitted under this Lease shall be in writing and shall be
personally delivered or shall be deemed to be delivered (whether or not actually
received) when deposited in the United States Mail, postage prepaid, certified
mail, return receipt requested, addressed to the parties at the respective
addresses set forth in section 1.05.
15.08 Submission of Lease. Submission of this Lease to Lessee for signature does
not constitute a reservation of space or an option to lease. This Lease is not
effective until execution by and delivery to both Lessor and Lessee.
15.09 Corporate Authority. If Lessee executes this Lease as a corporation, each
of the persons executing this Lease on behalf of Lessee does hereby personally
represent and warrant that Lessee is a duly authorized and existing corporation,
that Lessee is qualified to do business in the state in which the leased
premises are located, that the corporation has full right and authority to enter
into this Lease, and that each person signing on behalf of the corporation is
authorized to do so. In the event any representation or warranty is false, all
persons who execute this Lease shall be liable, individually, as Lessee.
15.10 Severability. If any provision of this Lease or the application thereof to
any person or circumstance shall be invalid or unenforceable to any extent, the
remainder of this Lease and the application of such provisions to other persons
or circumstances shall not be affected thereby and shall be enforced to the
greatest extent permitted by law.
15.11 Joint and Several Liability. All parties signing this Lease as Lessee
shall be jointly and severally liable for all obligations of Lessee.
15.12 Lessor's Liability. If Lessor shall be in default under this Lease and, if
as a consequence of such default, Lessee shall recover a money judgment against
Lessor, such judgment shall be satisfied only out of the right, title and
interest of Lessor in the building as the same may then be encumbered and
neither Lessor nor any person or entity comprising Lessor shall be liable for
any deficiency. In no event shall Lessee have the right to levy execution
against any property of Lessor nor any person or entity comprising Lessor other
than its interest in the building as herein expressly provided.
15.13 Indemnity. Lessor agrees to indemnify and hold harmless Lessee from and
against any liability or claim, whether meritorious or not, arising with respect
to any broker whose claim arises by, through or on behalf of Lessor. Lessee
agrees to indemnify and hold harmless Lessor from and against any liability or
claim, whether meritorious or not, arising with respect to any broker whose
claim arises by, through or on behalf of Lessee.
15.14 The laws of the State of Texas shall govern this Lease.
ARTICLE 16.00 AMENDMENT AND LIMITATION OF WARRANTIES
16.01 Entire Agreement. IT IS EXPRESSLY AGREED BY LESSEE, AS A MATERIAL
CONSIDERATION FOR THE EXECUTION OF THIS LEASE, THAT THIS LEASE, WITH THE
SPECIFIC REFERENCES TO WRITTEN EXTRINSIC DOCUMENTS, IS THE ENTIRE AGREEMENT OF
THE PARTIES; THAT THERE ARE, AND WERE, NO VERBAL REPRESENTATIONS, WARRANTIES,
UNDERSTANDINGS, STIPULATIONS, AGREEMENTS OR PROMISES PERTAINING TO THIS LEASE OR
TO THE EXPRESSLY MENTIONED WRITTEN EXTRINSIC DOCUMENTS NOT INCORPORATED IN
WRITING IN THIS LEASE.
16.02 Amendment. THIS LEASE MAY NOT BE ALTERED, WAIVED, AMENDED OR EXTENDED
EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY LESSOR AND LESSEE.
16.03 Limitation of Warranties. LESSOR AND LESSEE EXPRESSLY AGREE THAT THERE ARE
AND SHALL BE NO IMPLIED WARRANTIES OF MERCHANTABILITY, HABITABILITY, FITNESS FOR
A PARTICULAR PURPOSE OR OF ANY OTHER KIND ARISING OUT OF THIS LEASE, AND THERE
ARE NO WARRANTIES WHICH EXTEND BEYOND THOSE EXPRESSLY SET FORTH IN THIS LEASE.
ARTICLE 17.00 OTHER PROVISIONS
17.01 Lessor will finish out the space on a turn key basis in accordance with
plans and specifications mutually agreed upon by Lessor and Lessee, but
substantially in the form of Exhibit A attached hereto. Within seven (7) days of
execution of this Lease by both parties, Lessor and Lessee shall sign off on
final construction plans and specifications. Failure by Lessee to execute such
plans and specifications shall not relieve Lessee from commencing to pay rent on
July 15, 2000.
17.02 Lessor will deliver the HVAC units to Lessee in working condition and
shall warrant their operation for the first six (6) months of the Lease term.
17.03 Early Termination Election
Lessee may at Lessee's election terminate this Lease prior to the expiration of
the lease term set forth in Section 1.03, on July 31, 2002 ("Early Termination
Date") upon the terms and conditions set forth herein.
(i) Lessee shall give Lessor written notice of its election to terminate
this lease at least One Hundred Eighty (180) days prior to the Early Termination
Date upon which termination shall become effective.
(ii) No event of default by Lessee or no event that with notice or the
passage of time, or both, would constitute an event of default by Lessee shall
have occurred on or before the Early Termination Date.
(iii) Concurrent with the giving of notice under Paragraph 17.03(i), Lessee
shall pay to Lessor in cash the sum of $26,880.00; and
(iv) Concurrent with the giving of notice under Paragraph 17.03(i), Lessee
shall pay to Lessor in cash the amount of the unamortized tenant improvements
and commissions using an interest factor of ten percent (10%) per annum. By way
of example if the tenant improvements and commissions were $60,000 the
unamortized amount at July 31, would be $22,021.
17.04 Option to Extend Term: Provided Lessee at the end of the primary term of
this lease not be in default of any term, condition or covenant contained in
this lease, Lessee (but not any assignee or subtenant) shall have the right and
option to renew this lease, by written notice delivered to Lessor no later than
one hundred eighty (180) days prior to the expiration of the primary term, for
the additional term of two (2) years, under the same terms, conditions, and
covenants contained herein, except:
A. Lessee shall have no further renewal options unless granted by Lessor
in writing: and
B. The rental for the renewal term shall be based on the then prevailing
rental rates for properties of equivalent quality, size, utility and location,
with the length of the lease term, and credit standing of the Lessee herein, to
be taken into account.
C. If Lessor and Lessee have not been able to agree on the rental for the
renewal term within thirty (30) days of the exercise of the option, the rent for
the renewal terms shall be determined as follows:
Within ten (10) days after the end of the thirty (30) day period,
Lessor and Lessee shall endeavor in good faith to agree upon a single appraiser.
If Lessor and Lessee are unable to agree upon a single appraiser within said ten
(10) days, each party, by written notice to the other, given within ten (10)
days after said ten (10) day period, appoint one appraiser. Within ten (10) days
after the two appraisers are appointed, they shall appoint a third appraiser. If
either Lessor or Lessee fails to appoint its appraiser within the prescribed
time period the single appraiser appointed shall determine the rental. Each
party shall bear the cost of the appraiser appointed by it and the parties shall
share equally the cost of the third appraiser.
The rental shall be the average of the two of the three appraisals
which are closest in amount and the third appraisal shall be disregarded.
17.05 Lessee shall have the right to place its name and corporate logo on the
facia of the building subject to all City ordinances and Lessor's building
standards.
17.06 Lessee shall be entitled to twenty eight (28) non designated parking
spaces. Lessor and Lessee acknowledge that Lessor shall have no obligation to
enforce Lessee's right to such parking spaces.
ARTICLE 18.00 SIGNATURES
Signed at DALLAS, this 21st day of JUNE , 2000.
LESSOR LESSEE
WHITEHALL - MIDWAY PARK NORTH, LTD. ALLSTAR SYSTEMS, INC.
By: By:
XXX X. XXXXXXXXX, BOARD MEMBER
RULES AND REGULATIONS
1. Lessor agrees to furnish Lessee two keys without charge. Additional
keys will be furnished at a nominal charge. Lessee shall not change locks
or install additional locks on doors without prior written consent of
Lessor. Lessee shall not make or cause to be made duplicates of keys
procured from Lessor without prior approval of Lessor. All keys to leased
premises shall be surrendered to Lessor upon termination of this Lease.
2. Lessee will refer all contractors, contractor's representatives and
installation technicians rendering any service on or to the leased premises
for Lessee to Lessor for Lessor's approval before performance of any
contractual service. Lessee's contractors and installation technicians
shall comply with Lessor's rules and regulations pertaining to construction
and installation. This provision shall apply to all work performed on or
about the leased premises or project, including installation of telephones,
telegraph equipment, electrical devices and attachments and installations
of any nature affecting floors, walls, woodwork, trim, windows, ceilings
and equipment or any other physical portion of the leased premises or
project.
3. Lessee shall not at any time occupy any part of the leased premises or
project as sleeping or lodging quarters.
4. Lessee shall not place, install or operate on the leased premises or
in any part of the building any engine, stove or machinery, or conduct
mechanical operations or xxxx thereon or therein, or place or use in or
about the leased premises or project any explosives, gasoline, kerosene,
oil, acids, caustics, or any flammable, explosive or hazardous material
without written consent of Lessor.
5. Lessor will not be responsible for lost or stolen personal property,
equipment, money or jewelry from the leased premises or the project
regardless of whether such loss occurs when the area is locked against
entry or not.
6. No dogs, cats, fowl, or other animals shall be brought into or kept in
or about the leased premises or project.
7. Employees of Lessor shall not receive or carry messages for or to any
Lessee or other person or contract with or render free or paid services to
any Lessee or to any of Lessee's agents, employees, or invitees.
8. None of the parking, plaza, recreation or lawn areas, entries,
passages, doors, elevators, hallways or stairways shall be blocked or
obstructed or any rubbish, litter, trash, or material of any nature placed,
emptied or thrown into these areas or such area used by Lessee's agents,
employees or invitees at any time for purposes inconsistent with their
designation by Lessor.
9. The water closets and other water fixtures shall not be used for any
purpose other than those for which they were constructed, and any damage
resulting to them from misuse or by the defacing or injury of any part of
the building shall be borne by the person who shall occasion it. No person
shall waste water by interfering with the faucets or otherwise.
10. No person shall disturb occupants of the building by the use of any
radios, record players, tape recorders, musical instruments, the making of
unseemly noises or any unreasonable use.
11. Nothing shall be thrown out of the windows of the building or down the
stairways or other passages.
12. Lessee and its employees, agents and invitees shall park their
vehicles only in those parking areas designated by Lessor. Lessee shall
furnish Lessor with state automobile license numbers of Lessee's vehicles
and its employees' vehicles within five days after taking possession of the
leased premises and shall notify Lessor of any changes within five days
after such change occurs. Lessee shall not leave any vehicle in a state of
disrepair (including without limitation, flat tires, out of date inspection
stickers or license plates) on the leased premises or project. If Lessee or
its employees, agents or invitees park their vehicles in areas other than
the designated parking areas or leave any vehicle in a state of disrepair,
Lessor, after giving written notice to Lessee of such violation, shall have
the right to remove such vehicles at Lessee's expense.
13. Parking in a parking garage or area shall be in compliance with all
parking rules and regulations including any sticker or other identification
system established by Lessor. Failure to observe the rules and regulations
shall terminate Lessee's right to use the parking garage or area and
subject the vehicle in violation of the parking rules and regulations to
removal and impoundment. No termination of parking privileges or removal of
impoundment of a vehicle shall create any liability on Lessor or be deemed
to interfere with Lessee's right to possession of its leased premises.
Vehicles must be parked entirely within the stall lines and all directional
signs, arrows and posted speed limits must be observed. Parking is
prohibited in areas not striped for parking, in aisles, where "No Parking"
signs are posted, on ramps, in cross hatched areas, and in other areas as
may be designated by Lessor. Parking stickers or other forms of
identification supplied by Lessor shall remain the property of Lessor and
not the property of Lessee and are not transferable. Every person is
required to park and lock his vehicle. All responsibility for damage to
vehicles or persons is assumed by the owner of the vehicle or its driver.
14. Movement in or out of the building of furniture or office supplies and
equipment, or dispatch or receipt by Lessee of any merchandise or materials
which requires use of elevators or stairways, or movement through the
building entrances or lobby, shall be restricted to hours designated by
Lessor. All such movement shall be under supervision of Lessor and carried
out in the manner agreed between Lessee and Lessor by prearrangement before
performance. Such prearrangements will include determination by Lessor of
time, method, and routing of movement and limitations imposed by safety or
other concerns which may prohibit any article, equipment or any other item
from being brought into the building. Lessee assumes, and shall indemnify
Lessor against, all risks and claims of damage to persons and properties
arising in connection with any said movement.
15. Lessor shall not be liable for any damages from the stoppage of
elevators for necessary or desirable repairs or improvements or delays of
any sort or duration in connection with the elevator service.
16. Lessee shall not lay floor covering within the leased premises without
written approval of the Lessor. The use of cement or other similar adhesive
materials not easily removed with water is expressly prohibited.
17. Lessee agrees to cooperate and assist Lessor in the prevention of
canvassing, soliciting and peddling within the building or project.
18. Lessor reserves the right to exclude from the building or project,
between the hours of 6:00p.m. and 7:00a.m. on weekdays and at all hours on
Saturday, Sunday and legal holidays, all persons who are not known to the
building or project security personnel and who do not present a pass to the
building signed by the Lessee. Each Lessee shall be responsible for all
persons for whom he supplies a pass.
19. It is Lessor's desire to maintain in the building or project the
highest standard of dignity and good taste consistent with comfort and
convenience for Lessees. Any action or condition not meeting this high
standard should be reported directly to Lessor. Your cooperation will be
mutually beneficial and sincerely appreciated. Lessor reserves the right to
make such other and further reasonable rules and regulations as in its
judgment may from time to time be necessary, for the safety, care and
cleanliness of the leased premises and for the preservation of good order
therein.
