EXHIBIT 10.32
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:
64 LTD, LLC ("Lessor)
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Equity Inns Services, Inc. ("Lessee")
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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"):
Street: 7700 Wolf River Suite:
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City: Germantown State: TN Zip: 38138
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Approximate Square Feet: 9,428 Project Name: River Center
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Lessee shall have a non-exclusive easement and right to use the common areas of
the project of which the Leased Premises is a part; including, without
limitation, not less than 45 parking spaces in the paved parking lot adjacent to
the Leased Premises and the right of ingress and egress from the adjacent public
right of way to such parking lot and from such parking lot to the Leased
Premises.
1.03. Term. Subject to and upon the conditions set forth herein,
the term of this Lease shall commence on December 17, 1998 (the "Commencement
Date") and shall terminate 120 months thereafter.
1.04. Base Rent & Security Deposit. Base Rent is $13,238.48 per
month. Security Deposit is $0.
1.05. Addresses.
LESSOR'S ADDRESS LESSEE'S ADDRESS
0000 Xxxx Xxxxx Xxxx. 0000 Xxxx Xxxxx Xxxx.
Xxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
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 other
address as instructed by Lessor to Lessee. One monthly installment shall be due
and payable on the date of execution of this Lease by Lessee for the (1st) first
month's rent and a like monthly installment shall be due and payable on or
before the (1st) 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 (1st)
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 (1st) first day of each succeeding
calendar month during the term of this Lease.
2.02. Operating Expenses. Lessee agrees to pay within (30) thirty
days of Lessor's invoice date the operating expenses for the property known as
0000 Xxxx Xxxxx Xxxxxxxxx, Xxxxxxxxxx, TN. Lessor may invoice Lessee monthly
for the estimated operating expenses for each calendar year, which amount shall
be adjusted each year based upon reasonably anticipated operating expenses.
Lessor shall provide Lessee, within (3) three months following the close of
each calendar year, an accounting statement showing in reasonable detail all
computations of additional rent under this section. In the event the total of
Lessee's estimated monthly payments exceed the actual operating expenses,
Lessee shall receive a refund with the accounting statement. In the event the
total of Lessee's estimated monthly payments are less than the actual operating
expenses, Lessee shall receive a invoice for the balance due.
2.03. Definition of Operating Expenses. The term "operating expenses"
includes all 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 and repair and replacement
(excluding structural and roof replacement) costs, electricity, gas, fuel,
water, sewer, and other utility charges; security (if any), window washing and
janitorial services, trash and snow removal, landscaping and pest control,
management fees, wages and benefits payable to employees or personnel whose
duties are directly connected with the operation and maintenance of the
building; all services and supplies required in maintaining and operating the
building or project including parking and common areas; taxes assessed upon the
buildings, land, improvements, and rents and the total cost of insurance on the
buildings and improvements, including liability coverage for Lessor and loss of
rents coverage. The term "operating expenses" does not include the following:
Lessor overhead, items that are capitalized under General Accepted Accounting
Principles salaries for anyone above property management level, capital
improvements, depreciation allowance on the buildings or equipment, interest and
principal payments on any mortgage or other indebtedness of Lessor, leasing
commissions, income taxes of Lessor, repairs or restoration work caused by fire,
wind or other casualty, advertising expenses or space renovation expenses for
new lessee's.
2.04. Late Payment Charge. Other remedies for nonpayment of rent
withstanding, if the monthly rental payment is not received by Lessor on or
before the (5th) fifth day of the month for which the rent is due, or if any
other payments due Lessor by Lessee is not received by Lessor on or before the
(5th) fifth day of the month next following the month in which Lessee was
invoiced. Lessee shall have (10) ten days from the date Lessee receives express
written notice from the Lessor that the Lessee has not made a timely payment in
order to make the payment and if not made to Lessor with (10) ten days of
notice, a late payment charge of (5) five percent of such past due amount shall
become due and payable in addition to such amounts owed under this Lease.
Additionally, Lessee shall pay Citicorp prime plus 2%, not in excess of 18% per
annum interest on any sums due Lessor under the terms and conditions of this
Lease from and after their due date.
2.05. Holding Over. In the event that Lessee does not vacate the Leased
Premises upon the expiration or termination of this Lease, Lessee shall be a
month to month tenant for the holdover period and all of the terms and
provisions of this Lease shall be applicable during that period, and Lessee
shall pay Lessor as base rental for the period of such holdover an amount equal
to the base rent which would have been payable by Lessee had the holdover period
been a part of the original term of this Lease. Lessee agrees to vacate and
deliver the Leased Premises to Lessor upon (30) thirty days notice from Lessor
to vacate. The rental payable during the holdover period shall be payable to
Lessor on or before the (5th) fifth day of the month. No holding over by Lessee
without consent of Lessor, shall operate to extend the term of this Lease.
ARTICLE 3.00 OCCUPANCY AND USE
3.01. Use. The Leased Premises shall be used and occupied by Lessee as
general office space, ancillary uses to general office or other reasonable use.
Lessee shall 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 or common areas, use any
apparatus or machine which makes undue noise or causes vibration in any portion
of the building. Lessee shall neither permit any waste on the Leased Premises
and Lessee shall not store any trash outside a receptacle or dumpster approved
by Lessor. Lessee shall not allow the Leased Premises to be used in any way
which would be extra hazardous on account of fire or which would in any way
increase or render void the fire insurance on the building.
3.02. Signs. No sign (temporary or permanent) of any type shall be
erected, placed or painted in, on or about the Leased Premises or prject except
those signs in uniform locations and uniform style reasonably designated and
fixed by the Lessor, which signs are in conformance with Lessor's reasonable
sign criteria eestablished for the project.
3.03. Compliance with Laws, Rules and Regulations. Lessor, at its
expense, warrants that the building and improvements were constructed to comply
with and do comply with all applicable local, state, and federal building codes.
Any expenses required by Lessor's mortgage or financing shall be Lessor's
responsibility and not included as part of the Operating Expenses in Section
2.03. 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 of the Leased Premises. Lessee
will comply with all such laws, ordinances and the like applicable to its use of
the Leased Premises and the operations of its businesses therein, and with the
Rules and Regulations of the building adopted by the 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.
3.04. Warranty of Possession. Lessor warrants that is 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 have the right to enter the Leased Premises to inspect the
same, 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. 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 unless Lessor's lock system used, add any additional locks
or in any 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 therefore.
ARTICLE 4.00 UTILITIES AND SERVICE
4.01. Building Services. Lessor shall provide the following services as
specified:
YES NO
[ ] [ ] Water
[ ] [ ] Janitorial Service _____ days a week (excluding
service to kitchens or break rooms)
[ ] [ ] Electricity/Gas
Lessor shall provide routine maintenance, painting and electric
lighting service for all public areas to maintain the building as a Class A
Office Building. Should any of the equipment or machinery break down, or for any
cause, cease to function properly, Lessor shall use reasonable diligence to
repair the same properly.
4.02. Theft of Burglary. Lessor shall not be responsible for providing
security, guard or any other protective services of any kind for Lessee and its
employees, agents, customers or invitees. 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, the building, or
exterior property.
4.03. Window Coverings. Lessor shall furnish and install window
coverings on all exterior windows to maintain a uniform exterior appearance.
Lessee shall not remove, modify, or replace these window coverings
or install any other window covering which would affect the exterior appearance
of the building. Lessee may install lined or unlined draperies on the interior
sides of the Lessor furnished window coverings for interior appearance or to
reduce light transmission, provided such draperies do not affect the exterior
appearance of the building or affect the operation of the buildings heating and
air conditioning system.
ARTICLE 5.00 REPAIRS AND MAINTENANCE
5.01. Lessor Repairs. Lessor shall maintain the roof, foundation,
parking and common areas, plumbing, electrical, heating and air conditioning
systems, doors, corridors, windows, and structural soundness of the exterior
walls. 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, provided Lessor has used reasonable
diligence to make such repairs within (15) fifteen days.
5.02. Lessee Repairs. Lessee shall, at its own cost and expense, repair
or replace any damage or injury to all or any part of the Leased Premises or
building caused by any act or omission of Lessee or Lessee's agents, employees,
invitees, licensees or visitors. 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 (10) ten days from receipt of Lessor's invoice.
5.03. Request for Repairs. All request for repairs or maintenance that
are the responsibility of Lessor pursuant to any provision of this Lease must be
made in writing to Lessor at the address in Section 1.05.
5.04. Lessee Damages. Lessee shall not intentionally cause any damage
to 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, other than normal wear and tear, shall be
borne by Lessee.
5.05. Mechanic's Lien. Lessee will cause any mechanic's or
materialman's lien 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 Lessor obtains the release of such lien, the amount paid by Lessor shall
be due and payable by the Lessee within (10) ten days of Lessor's notice.
ARTICLE 6.00 ALTERATIONS AND IMPROVEMENTS
6.01. Lessor Improvements. Lessor agrees to construct the interior
improvements to the Leased Premises as per the attached plans labeled Exhibit A
at Lessor's expense.
6.02. Lessee Improvements. Lessee shall not make or allow to be made
any material alterations in or to the Leased Premises without first obtaining
the written consent of the Lessor, which consent may in the sole and absolute
discretion of Lessor be denied. Any alterations, physical additions or
improvements to the Leased Premises made by Lessee shall be surrendered to
Lessor upon the termination of this Lease; provided, however, if 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 cost of removal and/or alterations to be
borne by Lessee. This clause shall not apply to non-structural alterations,
fixtures, moveable equipment or furniture owned by Lessee, which may be removed
by Lessee at the end 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.
ARTICLE 7.00 CASUALTY AND INSURANCE
7.01. Substantial Destruction. If the Leased Premises should be totally
destroyed by fire or other casualty, or the Leased Premises should be damaged so
that rebuilding cannot reasonably be completed within (90) ninety working days
after the date of written notification by Lessee to Lessor of the destruction,
this Lease shall terminate and rent shall be abated for the unexpired portion of
the Lease, effective as of the date of 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 (90) ninety 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 risk and expense proceed with reasonable diligence to
rebuild or repair the building or other improvements to substantially the same
condition in which they were delivered to the Lessee at the commencement date of
the Lease. If the Leased Premises are to be rebuilt or repaired and are
untenantable in whole or in part following the damage, and the damage or
destruction was not caused or contributed by the gross 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 abated during that period. In the event that Lessor fails
to complete the necessary repairs or rebuilding within (90) ninety 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 future 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 with the premiums paid in
advance, issued by and binding upon some solvent insurance company, insuring the
buildings and improvements made by Lessor against all risk of direct physical
loss in an amount equal to at least (90) ninety percent of the full replacement
cost of the building structure and its improvements made by Lessor as of the
date of the loss; provided, Lessor shall not be obligated in any way or manner
to insure, protect, or replace any personal property (including, but not limited
to, any furniture, equipment, machinery, goods, fixtures, inventory, supplies,
records or leasehold improvements made by Lessee) of Lessee upon or within the
Leased Premised. Lessee shall have no right in or claim to the proceeds of any
policy of insurance maintained by Lessor even if the cost of such insurance is
borne by Lessee as set forth in Section 2.02.
7.04. 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 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 for the mutual waivers.
7.05. Hold Harmless. Lessor shall not be liable to Lessee's employees,
agents, invitees, licensees or visitors, or to any other person, for any 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 any other
person entering upon the Leased Premises under express or implied invitation by
Lessee. 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 a 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 as defined in Section 3.01, 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 (as delivered by Lessor) 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 circumstance. Lessee shall have no claim to
the condemnation award of 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 to a party that assumes the obligations of Lessor under this
Agreement. Any such sale, transfer or assignment shall operate to release Lessor
from any and all liabilities under this Lease arising as of 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 by transfer (100% stock transfer, merger or consolidation shall not 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 notify Lessor at least (30)
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
sublease or assignment 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 (15) fifteen days after Lessor's
receipt of Lessee's proposed assignment or sublessee and all required
information concerning the proposed sublessee or assignee, Lessor shall have the
following options: 1) consent to the proposed assignment or sublease or 2)
refuse, but only for good cause which shall be expressed in writing, with the
failure to give notice within (20) twenty business days being deemed a consent
to the proposed assignment or sublease.
9.04. Rights of Mortgagee. Lessee accepts this Lease subject and
subordinate to any recorded mortgage or deed of trust lien presently 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, provided such mortgage or other document provides that the Lessee
shall not be disturbed in its possession of the Leased Premises in accordance
with this Lease provided Lessee is not in default under this Lease. Lessor is
hereby irrevocably vested with full power and authority to subordinate Lessee's
interest under this Lease to any mortgagor deed of trust hereafter placed on the
Leased Premises, and Lessee agrees upon demand to execute additional instruments
subordinating this Lease as Lessor may require, provided such mortgage or other
document provides that the Lessee shall not be disturbed in its possession of
the Leased Premises in accordance with this Lease provided Lessee is not in
default under this Lease. If the interest 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 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 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 (10) ten days after receipt of a request from Lessor Lessor's
mortgagee, a statement certifying the following (to the extent true and
correct): Lessee is in possession of the Leased Premises; the Leased Premises
are acceptable; the Lease is in full force and effect; the Lease is 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 (1) one
month and will not be prepaid for more than (1) 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 be required by Lessor or Lessor's mortgagee.
Lessee's failure to deliver such statement, in addition to being in 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 (1) one month rent in advance. To the extent requested by
Lessee, the Lessor shall issue estoppel certificates reasonably requested by the
Lessee.
ARTICLE 10.00 DEFAULT AND REMEDIES
10.01. 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 and
such failure is not cured within ten days after express written notice of such
failure from the Lessor to the Lessee; ;(2) 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 (3) thirty days after written notice to Lessee
or such additional reasonable period of time needed to cure such default
provided the Lessee is diligently pursuing such a cure; (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 and Lessee fails to pay, bond off, provide
security or contest such lien.
10.02. 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 remedies set forth herein without any notice or demand. (1)
Lessor may enter upon and take possession of the Leased Premises, by picking or
changing locks if necessary, and lock out, expel or remove Lessee and any other
person who may be occupying all or any part of the Leased Premises without being
liable for any claim for damages of any kind, and relet the Leased Premises on
behalf of Lessee and receive the rent directly by reason of the reletting.
Lessee agrees to pay Lessor on demand any deficiency that may arise by reason of
any reletting of the Leased Premises; further, Lessee agrees to reimburse Lessor
for any expenditures made by it in order to relet the Leased Premises,
including, but not limited to, remodeling and repair costs. (2) Lessor may enter
upon the Leased Premises, by picking or changing the locks if necessary, without
being liable for any claim for damages, and do whatever Lessee is obligated to
under the terms of this Lease. Lessee agrees to reimburse Lessor on demand for
any expenses which Lessor may incur in effecting compliance with Lessee's
obligations under this Lease; further, Lessee agrees that Lessor shall not be
liable for any damages resulting to Lessee from effecting compliance with
Lessee's obligations under this Lease caused by the negligence of Lessor or
otherwise. (3) Lessor may terminate this Lease, in which event Lessee shall
immediately surrender the Leased Premises to Lessor, and if Lessee fails to
surrender the Leased Premises, Lessor may, without prejudice to any other remedy
which it may have for possession or arrearages in rent, enter upon and take
possession of the Leased Premises, by picking or changing locks, if necessary,
and lock out, expel or remove Lessee and any other person who may be occupying
all or any part of the Leased Premises without being liable for any claim for
damages. Lessee agrees to pay on demand the amount of all loss and damage which
Lessor may suffer by reason of the termination of the Lease under this section,
whether through inability to relet the Leased Premises on satisfactory terms or
otherwise. Notwithstanding any other remedy set forth in this Lease, in the
event Lessor has made rent concessions of any type or character, or waived any
base rent, and Lessee fails to take possession of the Leased Premises on the
commencement date or otherwise defaults at any time during the terms of this
Lease, the rent concessions, including any waived base rent, shall be canceled
and the amount of the base rent or other rent concessions shall be due and
payable immediately as if no rent concessions or waiver of any base rent had
ever been granted. A rent concession or waiver of the base rent shall not
relieve Lessee of any obligation to pay any other charge due and payable under
this Lease, including, without limitation, any sum due under Section 2.02.
Notwithstanding anything contained in this Lease to the contrary, this Lease may
be terminated by Lessor only by mailing or delivering written notice of such
termination to Lessee, and no other act or omission of Lessor shall be construed
to be a termination of this Lease. The Lessor shall take reasonable steps to
mitigate damages from any default.
ARTICLE 11.00 DEFINITIONS
11.01. Abandon. "Abandon" means the vacating of all or a substantial
portion of the Leased Premises by Lessee, whether or not Lessee is in default of
the rental payments due under this Lease.
11.02. Act of God or Force Majeure. An "act of God" or "force majeure"
is defined for purposes of this Lease as strikes, lockouts, sit-downs, material
or labor restrictions by any governmental authority, unusual transportation
delays, riots, floods, washouts, explosions, earthquakes, fire, storms, weather
(including wet weather or inclement weather which prevents construction), acts
of the 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.
11.03. 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.
11.04. Commencement Date. "Commencement date" shall be the date set
forth in Section 1.03.
11.05. Proportionate Share. "Proportionate Share" shall be defined as
being a fraction, the numerator of which is the gross square feet in the
premises (as defined in Section 1.02) and the denominator of which is the total
square feet of area within the project in which the premises are located.
11.06. 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.
ARTICLE 12.00 MISCELLANEOUS
12.01. 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 10.00 above shall not preclude pursuit of
any one or more or 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 or 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.
12.02. Act of God. Lessor or Lessee shall not be required to perform
any covenant or obligation in this Lease, or be liable in damages, so long as
the performance or non-performance of the covenant or obligation is delayed,
caused or prevented by any act of God, force majeure or by the other party.
12.03. Attorney's Fees. In the event Lessee/Lessor defaults in the
performance of any of the terms, covenants, agreements or conditions contained
in this Lease and Lessor/Lessee places in the hands of an attorney the
enforcement of all or any part of this Lease, the prevailing parties cost of
collection, including reasonable attorneys fees and litigation cost, whether
suit is actually filed or not, shall be paid by the losing party.
12.04. 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,
provided such owner assumes in writing the obligations of the Lessor under this
Agreement.
12.05. Captions. The captions appearing in the 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.
12.06. Notice. All rent and other payments to be made by Lessee shall
be payable to Lessor at the address set forth in Section 1.05 or at any other
address within the United States as Lessor may specify from item to time by
written notice. Any notice or document required or permitted to be delivered by
the terms of this Lease 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.
12.07. 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 of the law.
12.08. 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.
ARTICLE 13.00 AMENDMENT AND LIMITATION OF WARRANTIES
13.01. 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; A 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.
13.02. Amendment. THIS LEASE MAY NOT BE ALTERED, WAIVED, AMENDED OR
EXTENDED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY LESSOR AND LESSEE.
13.03. Limitation of Warranties. LESSOR AND LESSEE EXPRESSLY AGREE THAT
THERE ARE AND SHALL BE NO IMPLIED WARRANTIES OR MERCHANTABILITY, HABITABILITY,
FITNESS FOR A PARTICULAR PURPOSE OR ANY KIND ARISING OUT OF THIS LEASE, AND
THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THOSE EXPRESSLY SET FORTH IN THIS
LEASE.
ARTICLE 14.00 OTHER PROVISIONS
14.01. Insurance. Lessee shall at all times during the terms of this
Lease maintain commercial general liability coverage with single combined limits
not less than $1,000,000 with the premiums paid no fewer than (10) ten days in
advance, issued by and binding upon an reputable insurance company, protecting
and naming the Lessor, Lessor's Agents and Lessor's mortgage as additional
insured. Lessee shall obtain a written provision in the subject policy whereby
the insurance company is required to notify Lessor in writing no fewer than (20)
twenty days prior to the cancellation of such insurance.
14.02. Waste. Lessee and its employees, agents and invitees shall not
store, place, dispose, stack, assemble (temporary or permanent) any
items/materials of any nature outside of the actual Leased Premises under any
condition other than the approved trash dumpster as provided by the Lessor, in
the event any items are in violation of this lease provision. Lessor shall have
the undisputed right to have the items/materials removed and disposed of at
Lessee's sole expense and Lessee shall not have any recourse against Lessor.
14.03. Lease Signs. Lessee shall not place any signs advertising the
premises "For Lease" on or about the premises at any time in order to sublease
the premises.
14.04. Hazardous Waste. Lessee, its assigns, and sublessees shall not
receive, store, dispose of or handle any "red label" substances or hazardous
substances defined as "hazardous waste," "extremely hazardous waste" or
"hazardous substance," as defined by state, federal and local government law.
Strictly prohibited in any form or quantity is asbestos, corrosives,
polychlorabiphenyls ("PCB s"), and petroleum. Lessee shall not causes the Leased
Premises to become contaminated in any manner for which the Lessee is legally
liable, and Lessee shall indemnify and hold harmless Lessor from any and all
claims, damages, fines, judgments, penalties, costs, liabilities, or losses due
to contamination, spills or leakage on or about the Leased Premises caused by
the Lessee.
14.05. Early Possession. In the event Lessee is permitted by Lessor to
enter, perform work on or to occupy the Leased Premises, either exclusively or
otherwise, prior to the commencement date, it is agreed that all of Lessee's
undertakings and obligations set forth in this Lease, other than Lessee's
obligations to pay rent, shall be effective from and after the date of Lessee's
entry, work commencement or occupancy.
ARTICLE 15.00 SIGNATURES
SIGNED THIS 11TH DAY OF JANUARY, 1999.
LESSOR LESSEE
SIGNED: /s/ M. Xxxxxx Xxx SIGNED: /s/ Xxxxxxx X. XxXxxxx, Xx.
----------------- ---------------------------
TITLE: Managing Member TITLE: CEO
----------------- ---------------------------
President-Equity Inns Services, Inc.
RULES AND REGULATIONS
1) Lessee shall refer all contractors, servicemen, repairmen, and installation
technicians rendering any service to Lessee, to Lessor for Lessor's
consultations before any work or contractual service is performed. This
provision shall apply to all work of any and every kind in or about the Leased
Premises or property, including, but not limited to, telephones, telegraph
equipment, electrical devices and attachments, and installations of any nature
affecting floors, walls, woodwork, trim, ceilings, glass, windows, frames,
plumbing or any other physical portion of the building. Under no circumstances
shall Lessee or any employee, agent or repairman working for the Lessee go on
the roof of the Leased Premises or building without first obtaining written
consent from the Lessor.
2) Lessee shall not at any time occupy the Leased Premises or project as
sleeping or lodging quarters.
3) No dogs, cats, fowl or any other animals, insects, etc. shall be brought
upon, into or about the project or Leased Premises
4) No person shall use any radio, record player, tape recorded, stereo, musical
instrument, loudspeaker or other apparatus that emits noise or disturbs the
other Lessees in the building or project. No antennas, receiving dishes or any
other device of a similar nature shall be placed in, on or about the Leased
Premises or project.
5) None of the parking areas, walks, entries or doors shall be blocked or
obstructed in any way.
6) Lessee shall be solely responsible for any damage caused by the building,
property or Leased Premises by moving or taking out property, furniture,
inventory, fixtures, etc. by Lessee, Lessee's employees, or contractors.
7) No draperies, shutters, window coverings or reflective film/tape of any kind
or nature shall be installed on exterior windows or doors without Lessor's
written consent.
8) Lessor reserves the right to make such other reasonable rules and regulations
as in its judgment may from time to time be necessary for the safety, care,
operation and cleanliness of the Leased Premises and project.
9) Lessee agrees to cooperate and assist Lessor in the prevention of canvassing,
soliciting and peddling on or about the Leased Premises or project.
10) Lessee shall furnish Lessor on demand the license numbers of Lessee's and
Lessee's employees vehicles and shall notify Lessor within (5) five days after
such change of any changes that occur. Lessee shall not park any vehicle in a
state of disrepair (including, without limitation, flat tires, dripping oil or
fluids, out of date inspection stickers or license plates) on the Leased
Premises or the project, and Lessor has the full right and authority to tow and
store any such vehicle at Lessee's expense if done so. Lessee and its employees,
agents and invitees shall not wash, repair, or perform maintenance on any
vehicle under any circumstances on or about the project or Leased Premises.
12) Lessor shall have reasonable control over all common areas throughout the
term of this Lease.
13) Movement in or out of the building of major furniture of office equipment
shall be restricted to hours designated by Lessor. All such movement shall be
under the supervisions of Lessor and carried out in the manner instructed by
Lessor before the movement takes place. Such prearrangement 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.
14) Lessee shall not throw any articles of any kind or nature out of the windows
of the building or down the stairways or other passages.
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 nature or
duration in connection with the elevator service.
16) Lessee shall not lay or install any floor covering within the Leased
Premises without the written consent of the Lessor. The use of cement or other
similar adhesive materials not easily removed with water is expressly
prohibited.
