Exhibit 10.12
STANDARD COMMERCIAL LEASE 1/91
LEASE AGREEMENT
THIS LEASE made and entered into between RREEF USA FUND I, a
California Group Trust ("Landlord") and NETSAT EXPRESS, INC., a division of
Worldcomm Systems Inc. ("Tenant").
1. Premises and Term
In consideration of the obligation of Tenant to pay rent and of the
other terms, provisions and covenants hereof, Landlord leases to Tenant, and
Tenant leases from Landlord, that portion as outlned on the site plan attached
as Exhibit B, including any parking areas and truck loading areas specifically
marked on Exhibit B for the exclusive use of Tenant (the "Premises") of certain
real property legally described in Exhibit A and the buildings and improvements
thereon (the "Building"). KNOWN AS 000 XXXX XXXXXX CONSISTING OF APPROXIMATELY
3,000SF - SUITE 300.
Taking of possession by Tenant shall be deemed to establish
conclusively that the Premises have been so completed and that the Premises are
in good and satisfactory condition, as of when possession was so taken (except
for such items Landlord is permitted to complete at a later date because of
weather conditions or other causes beyond Landlord's reasonable control, which
items shall be specified by Landlord to Tenant in writing). Tenant acknowledges
that no representations as to the repair of the Premises have been made by
Landlord, unless expressly set forth in this Lease.
2. Base Rent; Security Deposit
Tenant agrees to pay to Landlord base rent for the entire Term as
the rate shown on Exhibit B one such monthly installment shall be due and
payable without demand on or before the first day of each calendar month during
the Term, provided, that the rental payment for any fractional calendar month
shall be prorated. In addition, Tenant agrees to deposit with Landlord on the
date hereof the sum shown on Exhibit B as the security deposit, which sum shall
be held by Landlord, without obligation for interest, as security for the full,
timely and faithful performance of Tenant's obligations under this Lease, it
being agreed that such deposit is not an advance rental deposit or a measure of
Landlord's damages. Upon the occurrence of any event of default by Tenant,
Landlord may, from time to time, without prejudice to any other remedy, use such
fund to make good any arrears of rent or other payments due Landlord hereunder,
and any other damage, injury, expense or liability caused by Tenant's default;
and Tenant shall pay to Landlord on demand the amount so applied in order to
restore the security deposit to its orginal amount. Any remaining balance shall
be returned at such time after termination of this Lease when Landlord shall
have determined that all Tenant's obligations under this Lease have been
fulfilled.
3. Use
A. The Premises shall be continuously used by Tenant, but only for
the purpose of receiving, storing, shipping and selling (other than at retail)
products, materials and merchandise made and/or distributed by Tenant and for no
other use or purpose. Tenant shall at its own cost and expense obtain any and
all licenses and permits necessary for any such use. The outside storage of any
property (including, without limitation, overnight parking of trucks and other
vehicles) is prohibited. Tenant shall comply with all governmental laws,
ordinances and regulations ("Laws") applicable to its use and occupancy of the
Premises and shall promptly comply with all governmental orders and directives
for the correction, prevention and abatement of any violations or nuisances in
or upon, or connected with the Premises, all at Tenant's sole expense. If as a
result of any change in Laws, the Premises must be altered to lawfully
accommodate the use and occupancy thereof, such alterations shall be made only
with the consent of Landlord, but the entire cost thereof shall be borne by
Tenant; provided, that, the necessity of Landlord's consent shall in no way
create any liability against Landlord for the failure of the Tenant to comply
with such Laws. Tenant and its employees, customers and licensees shall have the
nonexclusive right to use in common with the other parties occupying the
Building, common parking areas, if any, (exclusive of any parking or work load
areas designated or to be designated by Landlord for the exclusive use of Tenant
or other tenants occupying or to be occupying other portions of the Building),
driveways and alleys adjacent to the Building. Landlord shall at all times have
the right to promulgage such reasonable rules and regulations as it deems
advisable for the safety, care and cleanliness of the Premises and for the
preservation of good order therein. Copies of all rules and regulations,
changes, and amendments will be forwarded to Tenant. Tenant shall be responsible
for the compliance with such rules and regulations by Tenant's agents,
employees, and invitees.
B. Tenant agrees that Tenant, its agents and contractors, licensees,
or invitees shall not handle, use, manufacture, store or dispose of any
flammables, explosives, radioactive materials, hazardous wastes or materials,
toxic wastes or materials, petroleum products or derivatives or other similar
substances (collectively "Hazardous Materials") on, under, or about the
Premises, without Landlord's prior written consent in Landlord's sole
discretion. Tenant may handle, store, use or dispose of products containing
small quantities of Hazardous Materials, which products are of a type
customarily found in offices and households (such as aerosol cans containing
insecticides, toner for copies, and the like);provided that Tenant shall handle,
store, use and dispose of any such Hazardous Materials in a safe and lawful
manner and shall not allow such Hazardous Materials to contaminate the Premises
or the environment. Tenant further agrees that Tenant will not permit any
substance to come into contact with groundwater under the Premises. Any such
substance coming into contact with groundwater shall, regardless of its inherent
hazardous characteristics, be considered a Hazardous Material for purposes of
this Lease.
C. If Landlord, in its sole discretion, believes that the Premises
or the environment have become contaminated with Hazardous Materials, Landlord,
in addition to its other rights under this Lease, may enter upon the Premises
and obtain samples from the Premises, including without limitation the soil and
groundwater under the Premises, for the purposes of analyzing the same to
determine whether and to what extent the Premises or the environment have become
so contaminated. Tenant shall reimburse Landlord for the costs of any
inspection, sampling and analysis that discloses contamination for which Tenant
is liable. Tenant may not perform any sampling, testing, or drilling to locate
any Hazardous Materials on the Premises without Landlord's to locate any
Hazardous Materials on the Premises without Landlord's prior written consent.
Any of Tenant's insurance insuring against claims of the type dealt with in this
Paragraph shall be considered primary coverage for claims against the Premises
arising out of or under this Paragraph. In the event of any transfer of Tenant's
interest under this Lease or the termination of this Lease, by lapse of time or
otherwise, Tenant shall be solely responsible for compliance with any and all
then effective Laws concerning (i) the physical condition of the Premises; or
(ii) the presence of Hazardous Materials in or on the Premises (such as the
Illinois Responsible Property Transfer Act), including but not limited to any
reporting or filing requirements imposed by such laws. Tenant's duty to pay rent
shall continue until the obligations imposed by such laws are satisfied in full
and any certificate of clearance or similar document has been delivered to
Landlord.
D. Without limiting the above, Tenant shall reimburse, defend,
indemnify and hold Landlord harmless from and against any and all claims,
losses, liabilities, damages, costs and expenses, including without limitation,
loss of rental income, loss due to business interruption, and attorneys fees and
costs, arising out of or in any way connected with the use, manufacture,
storage, or disposal of Hazardous Materials by Tenant, its agents or contractors
on, under or about the Premises including, without limitation, the costs of any
required or necessary investigation, repair, cleanup or detoxification and the
preparation of any closure or other required plans in connection herewith,
whether voluntary or compelled by governmental authority. The indemnity
obligations of Tenant under this clause shall survive any termination of the
Lease, Tenant shall provide Landlord on a timely basis with (i) copies of all
documents, reports, and *for two (2) months , commencing July 15, 1996, and then
on a month to month term commencing September 16, 1996 and cancellable by either
party upon 30 days prior written notice which notice must be given no later than
the last day of the month preceeding the date of termination.
communications with governmental authorities; and (ii) notice and an opportunity
to attend all meetings with regulatory authorities. Tenant shall comply with all
notice requirements and Landlord and Tenant agree to cooperate with governmental
authorities seeking access to the Premises for purposes of sampling or
inspection. No disturbance of Tenant's use of the Premises resulting from
activities conducted pursuant to this Paragraph shall constitute and actual or
constructive eviction of Tenant from the Premises. In the event that such
cleanup extends beyond the termination of the Lease, Tenant's obligation to pay
rent shall continue until such cleanup is completed and any certificate of
clearance or similar document has been delivered to Landlord. Rent during such
holdover period shall be at market rent; if the parties are unable to agree upon
the amount of such market rent, then the Landlord shall have the option of (a)
increasing the rent for the period of such holdover based upon the increase in
the Consumer Price Index for the third month preceding the Commencement Date to
the third month preceding the start of the holdover period; or (b) having
Landlord and Tenant each appoint a qualified MAI appraiser doing business in the
area; in turn, these two independent MAI appraisers shall appoint a third MAI
appraiser and the majority shall decide upon the fair market rental for Premises
as of the expiration of the then current term. Landlord and Tenant shall equally
share in the expense of this appraisal except that in the event the rent is
found to be within fifteen percent (15%) of the original rate quoted by
Landlord, then Tenant shall bear the full cost of all the appraisal process. In
no event shall the rent be subject to determination or modification by any
person, entity, court, or authority other than as set forth expressly herein,
and in no event shall the rent for any holdover period be less that the rent due
in the preceding period.
5. Repairs
A. Tenant shall at its own cost and expense keep and maintain all
parts of the Premises and such portion of the Building and improvements within
the exclusive control of Tenant in good condition, promptly making all necessary
repairs and replacements, whether ordinary or extraordinary, with materials and
workmanship of the same character, kind and quality as the original. Tenant as
part of its obligations hereunder shall keep the Premises in a clean and
sanitary condition. Tenant will, as far as possible keep all such parts of the
Premises from deterioration due to ordinary wear and from falling temporarily
out of repair, and upon termination of this Lease in any way Tenant will yield
up the Premises to Landlord in good condition and repair, loss by fire or other
casualty covered by insurance to be maintained by Landlord pursuant to
subparagraph 10A hereof excepted (but not excepting any damage to glass). Tenant
shall, at its own cost and expense, enter into a regularly scheduled preventive
maintenance/service contract with a maintenance contractor approved by Landlord
for servicing all heating and air conditioning systems and equipment serving the
Premises (and a copy thereof shall be furnished to Landlord). Tenant shall, at
its own cost and expense, repair any damage to the Premises resulting from
and/or caused in whole or in part by the negligence or misconduct of Tenant, its
agents, employees, invitees, or any other person entering upon the Premises as a
result of Tenant's business activities or caused by Tenant's default hereunder.
B. Landlord shall at its expense maintain in good repair, reasonable
wear and tear and any casualty covered by insurance to be maintained by Landlord
pursuant to subparagraph 10A excepted, the foundation, roof and walls of the
Building. Tenant shall immediately give Landlord written notice of any defect or
need for repairs, after which Landlord shall have reasonable opportunity to
repair same or cure such defect. Landlord's liability with respect to any
defects, repairs or maintenance for which Landlord is responsible under any of
the provisions of this Lease shall be limited to the cost of such repairs or
maintenance or the curing of such defect. The term "walls" as used herein shall
not include windows, glass or plate glass, doors, special store fronts or office
entries.
6. Alterations
Tenants shall not make any alterations, additions or improvements
("Alterations") to the Premises without the prior written consent of Landlord,
which consent may in Landlord's sole discretion be withheld. Each request shall
be accompanied by plans detailing the proposed Alteration. In connection with
any request, Landlord may retain the services of an architect and/or engineer
and Tenant shall reimburse Landlord for the reasonable fees of such architect
and/or engineer. If Landlord shall consent to any Alterations, Tenant shall
construct the same in accordance with all Laws and shall, prior to construction,
provide such assurances to Landlord, (including but not limited to, waivers of
lien, surety company performance bonds and personal guarantees of individuals of
substance) as Landlord shall require to protect Landlord against any loss from
any mechanics', materialmen's or other liens. At the time of completion of each
Alteration, Tenant shall deliver to Landlord a set of final "as-built" plans.
All Alterations and partitions erected by Tenant shall be and remain the
property of Tenant during the Term and Tenant shall, unless Landlord otherwise
elects at the time of termination, remove all Alterations and partitions erected
by Tenant ( but not any improvements erected for Tenant by Landlord at the
commencement of the Term) and restore the Premises to their original condition
by the date of termination of this Lease or upon earlier vacating of the
Premises. All shelves, bins, machinery and trade fixtures installed by Tenant
shall be removed by the date of termination of this Lease or upon earlier
vacating of the Premises; upon any such removal Tenant shall restore the
Premises to their original condition (including the removal of all fastening
bolts and the patching of the walls and floors where necessary). All such
removals and restoration shall be accomplished in a good workmanlike manner so
as not to damage the primary structure or structural qualities of the Building.
Tenant shall not install any signs upon the Building.
7. Inspections
Landlord and Landlord's agents and representatives shall have the
right to enter and inspect the Premises at any reasonable time;(i) to ascertain
the condition of the Premises; (ii) to determine whether Tenant is diligently
fulfilling Tenant's responsibilities under the lease; (iii) to supply any
service to be provided by Landlord to Tenant hereunder;(iv) to make such repairs
as may be required or permitted to be made by Landlord under the terms of this
Lease (and may for that purpose, without abatement of rent, erect, use and
maintain scaffolding, pipes conduits, and other necessary structures in, through
or on the Premises where reasonably required by the character of the work to be
performed, provided entrance to the Premises shall not be blocked thereby, and
further provided that the business of Tenant shall not be interfered with
unreasonably); (v) to show the Premises to prospective tenants, purchasers
mortgagees; and (vi) to do any other act or thing which Landlord deems
reasonable to preserve the Premises.
8. Utilities
Tenant shall pay for all water, gas, heat, light, power, telephone,
sewer, sprinkler systems charges and other utilities and services used on or
from the Premises, including without limitation, Tenant's proportionate share as
determined by Landlord of the cost of any central station signaling system
installed in the Premises of the Building together with any taxes, penalties,
and surcharges or the like pertaining thereto and any maintenance charges for
utilities. Tenant shall furnish all electric light bulbs, tubes and ballasts,
battery packs for emergency lighting and fire extinguishers. If any such
services are not separately metered to Tenant, Tenant shall pay such proportion
of all charges jointly metered with other premises as determined by Landlord, in
its sole discretion, to be reasonable. Any such charges paid by Landlord and
assessed against Tenant shall be immediately payable to Landlord on demand and
shall be additional rent hereunder. Landlord shall in no event be liable for any
interruption or failure of utility services on or to the Premises.
9. Assignment and Subletting
A. Tenant shall not have the right to assign or pledge this Lease or
to sublet the whole or any part of the Premises, whether voluntarily or by
operation of law, or permit the use or occupancy of the Premises by anyone other
than the Tenant, without the prior written consent of Landlord, which may be
withheld in Landlord's sole discretion, and such restrictions shall be binding
upon any assignee or subtenant to which Landlord has consented. In the event
Tenant desires to sublet the Premises, or any portion thereof, or assign this
Lease, Tenant shall give written notice thereof to Landlord within a reasonable
time prior to the proposed commencement date of such subletting or assignment,
which notice shall set forth the name of the proposed subtenant or assignee the
relevant terms of any sublease and copies of financial reports and other
relevant financial information on the proposed subtenant or assignee. In no
event may Tenant sublease, nor will Landlord consent to any sublease of all or
any portion of the Premises if the rent is determined in whole or in part upon
the income or profits derived by the sublessee (other than a rent based upon a
fixed percentage or percentages of receipts or sales). Notwithstanding any
permitted assignment or subletting, Tenant shall at all times remain directly,
primarily and fully responsible and liable for the payment of the rent herein
specified and for compliance with all of its other obligations under this Lease.
Upon the occurrence of an event of default, if the Premises or any part thereof
are then assigned or sublet, Landlord, in addition to any other remedies herein
provided, or provided by law, may, at its option, collect directly from such
assignee or subtenant all rents due and becoming due to Tenant under such
assignment or sublease and apply such rent against any sums due to Landlord from
Tenant hereunder, and no such collection shall be construed to constitute a
novation or a release of Tenant from the further performance of Tenant's
obligations hereunder.
B. In addition to, but not in limitation of, Landlord's right to
approve of any subtenant or assignee, Landlord shall have the option, in its
sole discretion, in the event of any proposed subletting or assignment, to
terminate this Lease, or in the case of a proposed subletting of less than the
entire Premises, to recapture the portion of the Premises to be sublet, as of
the date the subletting or assignment is to be effective. The option shall be
exercised, if at all, by Landlord giving Tenant written notice thereof within
sixty (60) days following Landlord's receipt of Tenant's written notice as
required above. If this Lease shall be terminated with respect to the entire
Premises pursuant to this paragraph, the Term shall end on the date stated in
the Tenant's notice as the effective date of the sublease or assignment as if
that date had been originally fixed in the Lease for the expiration of the Term.
If Landlord recaptures under this paragraph only a portion of the Premises, the
rent during the unexpired Term shall xxxxx proportionately based on the rent per
square foot contained in this Lease. In the event that Tenant sublets, assigns
or otherwise transfers its interest in this Lease and at any time receives
periodic rent and/or other consideration which exceeds that which Tenant would
at that time be obligated to pay to Landlord, Tenant shall pay to Landlord fifty
percent (50%) of the gross increase in such rent and fifty percent (50%) of any
other consideration as received by Tenant. Tenant shall pay to Landlord, on
demand, a reasonable service charge for the processing of the application for
consent and preparation of the consent and/or the assumption documents.
C. It shall not be unreasonable for Landlord to withhold its consent
to any proposed assignment or sublease if (i) the proposed assignee's or
sublessee's anticipated use of the Premises involves the generation, storage,
use, treatment or disposal of Hazardous Materials;(ii) the proposed assignee or
sublessee has been required by any prior landlord, lender, or governmental
authority to take remedial action in connection with Hazardous Materials
contaminating a property if the contamination resulted from such assignee's or
sublessee's actions or use of the property in question; or (iii) the proposed
assignee or sublessee is subject to an enforcement order issued by any
governmental authority in connection with the use, disposal, or storage of a
Hazardous Material.
10. Casualty and Condemnation
A. Landlord shall maintain all insurance policies deemed by Landlord
to be reasonably necessary or desirable and relating in any manner to the
protection, preservation or operation of the Building, including standard fire
and extended coverage insurance covering the Building in an amount not less than
ninety percent (90%) of the replacement cost thereof or, at Landlord's option,
all risk coverage and, if Landlord so elects, earthquakes, flood and wind
coverages. Subjects to the provisions of subparagraph 10B below, such insurance
shall be for the sole benefit of Landlord and under its sole control. Tenant
shall not take out separate insurance concurrent in form or contributing in the
event of loss with that required to be maintained by the Landlord hereunder.
Tenant shall maintain insurance on all Alterations erected by or on behalf of
Tenant in, on or about the Premises (but not any improvements erected for Tenant
by Landlord at the commencement of the Term) in an amount not less than ninety
percent (90%) of the replacement cost thereof. Such insurance shall insure
against the perils and be in form, including stipulated endorsements, as
provided in subparagraph 10A. Such insurance shall be for the sole benefit of
Tenant and under its sole control provided that Tenant shall be obligated to
immediately commence the rebuilding of the improvements erected by tenant and to
apply such proceeds in payment of the cost thereof.
B. If the Building should be damaged by any peril covered by the
insurance to be provided by Landlord under subparagraph 10A, but only to such
extent that the Building can in Landlord's estimation be materially restored
within two hundred fifty (250) days after the date upon which Landlord is
notified by Tenant of such damage (except that Landlord may elect not to rebuild
if such damage occurs during the last year of the Term), this Lease shall not
terminate, and Landlord shall at its sole cost and expense thereupon proceed
with reasonable diligence to rebuild and repair the Building to substantially
the condition in which they existed prior to such damage, except Landlord shall
not be required to rebuild, repair or replace any part of the partitions,
fixtures, additions and other improvements which may have been placed in, on or
about the Premises by Tenant. For purposes hereof the Building shall be deemed
"materially restored" if it is in such condition as would not prevent or
materially interfere with Tenant's use of the Premises for the purpose for which
they were then being used. If the Premises are untenantable in whole or in part
following such damage, the rent payable hereunder during the period in which the
Premises are untenantable shall be reduced to such extent as may be fair and
reasonable. In the event that Landlord should fail to complete such material
restoration within two hundred fifty (250) days after the date upon which
Landlord is notified by Tenant of such damage, Tenant may at its option
terminate this Lease within thirty (30) days thereafter by delivering written
notice of termination to Landlord as Tenant's exclusive remedy, whereupon the
Term shall end on the date of such notice as if the date of such notice were the
date originally fixed in the Lease for the expiration of the Term; provided,
however, that if construction is delayed because of changes, deletions, or
additions in construction requested by Tenant, strikes, lockouts, casualties,
acts of God, war, material or labor shortages, governmental regulation or
control or other causes beyond the reasonable control of Landlord, the period
for restoration, repair or rebuilding shall be extended for the amount of time
Landlord is so delayed. If the Building should be damaged or destroyed and
Landlord is not required to rebuild pursuant to the provisions of subparagraph
10B, this Lease shall terminate upon notice to Tenant, given within sixty (60)
days after Landlord is notified by Tenant of such damage, effective as of the
date of such damage as if the date had been originally fixed in the Lease for
the expiration of the Term.
C. Notwithstanding anything herein to the contrary, in the event the
holder of any indebtedness secured by a mortgage or deed of trust covering the
Premises or the Building requires that the insurance proceeds be applied to such
indebtedness, then Landlord shall have the right to terminate this Lease by
delivering written notice of termination to Tenant within fifteen (15) days
after such request is made by any such holder, whereupon the Lease shall end on
the date of such damage as if the date of such damage were the date originally
fixed in the Lease for the expiration of the Term.
D. Each of Landlord and Tenant hereby releases the other from any
and all liability or responsibility to the other or anyone claiming through or
under them by way of subrogation or otherwise for any loss or damage to property
caused by fire, extended coverage perils, vandalism or malicious mischief,
sprinkler leakage, or any other perils insured in policies of insurance covering
such property, even if such loss or damage shall have been caused by the fault
or negligence of the other party, or anyone for whom such party may be
responsible, including any other tenants or occupants of the remainder of the
Building; provided, however, that this release shall be applicable and in force
and effect only to the extent that such release shall be lawful at that time and
in any event only with respect to loss or damage occurring during such times as
the releasor's policies shall contain a clause or endorsement to the effect that
any such release shall not adversely affect or impair said policies or prejudice
the right of the releasor to recover thereunder and then only to the extent of
the insurance proceeds payable under such policies. Each of Landlord and Tenant
agrees that it will request its insurance carriers to include in its policies
such a clause or endorsement.
E. If the whole or any substantial part of the Premises or Building
should be taken for any public or quasi-public use under any Law or by right of
eminent domain, or by private purchase in lieu thereof (a "Condemnation") and
the taking would prevent or materially interfere with the use of Premises or the
Building for the purpose for which they are then being used, this Lease shall
terminate effective when the physical taking shall occur as if the date of such
taking were the date originally fixed in the Lease for the expiration of the
Term. If part of the Premises shall be Condemned, and this Lease is not
terminated as provided above, this Lease shall not terminate but the rent
payable hereunder during the unexpired portion of this Lease shall be reduced to
such extent as may be fair and reasonable, Landlord shall undertake to restore
the Premises to a condition suitable for Tenant's use, as near to the condition
thereof immediately prior to such taking as is reasonably feasible. In the event
of any such Condemnation, Landlord and Tenant shall each be entitled to receive
and retain such separate awards and/or portion of lump sum awards as may be
allocated to their respective interests in any condemnation proceedings;
provided that Tenant shall not be entitled to receive any award for Tenant's
loss of its leasehold interest, the right to such award being hereby assigned by
Tenant to Landlord.
11. Liability
Landlord shall not be liable to Tenant or Tenant's employees,
agents, patrons or visitors, or to any other person whomsoever, for any injury
to persons or damage to property on or about the Premises, the Building
resulting from and/or caused in part or whole by the negligence or misconduct of
Tenant, its agents, employees, invitees or any other person entering upon the
Premises, or caused by the Building becoming out of repair, or caused by leakage
of gas, oil, water or steam or by electricity emanating from the Building, or
due to any cause whatsoever, and Tenant hereby covenants and agrees that it will
at all times indemnify and hold safe and harmless the Building and Landlord from
any loss, liability, claims, suits, costs, expenses, including attorney's fees
and damages, both real and alleged, arising out of any such damage or injury;
except injury to persons or damage to property the sole cause of which is the
negligence of Landlord or the failure of Landlord to repair any part of the
Premises which Landlord is obligated to repair and maintain hereunder within a
reasonable time after the receipt of written notice from Tenant of needed
repairs. Tenant shall procure and maintain throughout the Term a policy or
policies of insurance, in form and substance satisfactory to Landlord, at
Tenant's sole cost and expense, insuring Landlord, Landlord's mortgagee, if any,
and Tenant against all claims, demands or actions arising out or in connection
with: (i) the Premises; (ii) the condition of the Premises; (iii) Tenant's
operations in and maintenance and use of the Premises; and (iv) Tenant's
liability assumed under this Lease, the limits of such policy or policies to be
in the amount of not less than Two Million Dollars ($2,000,000) per occurrence
in respect of injury to persons (including death) and in the amount of not less
than Five Hundred Thousand Dollars ($500,000) per occurrence in respect of
property damage or destruction, including loss of use thereof.
12. Holding Over
Tenant will, at the termination of this Lease by lapse of time or
otherwise, yield up immediate possession to Landlord. If Tenant retains
possession of the Premises or any part thereof after such termination, then
Landlord may, at its option, serve written notice upon Tenant that such holding
over constitutes any one of (i) renewal of this Lease for one year, and from
year to year thereafter, or (ii) creation of month to month tenancy, upon the
terms and conditions set forth in this Lease, or (iii) creation of a tenancy at
sufferance, in any case upon the terms and conditions set forth in this Lease;
provided, however, that the monthly rental (or daily rental under clause (iii))
shall, in addition to all other sums which are to be paid by Tenant hereunder,
whether or not as additional rent, be equal to double the total rental being
paid monthly to Landlord under this Lease immediately prior to such termination
(prorated in the case of clause (iii) on the basis of a 365 day year for each
day Tenant remains in possession). If no such notice is served, then a tenancy
at sufferance shall be deemed to be created at the rent in the preceeding
sentence. Tenant shall also pay to Landlord all damages sustained by Landlord
resulting from retention of possession by Tenant, including the loss of any
proposed subsequent tenant for any portion of the Premises. The provisions of
this paragraph shall not constitute a waiver by Landlord of any right of
re-entry nor shall receipt of any rent or any other act in apparent affirmance
of the tenancy operate as a waiver of the right to terminate this Lease.
13. Quiet Enjoyment
Landlord covenants that it now has, or will acquire before Tenant
takes possession of the Premises, good title to the Premises. In the event this
Lease is a sublease, then Tenant agrees to take the Premises subject to the
provisions of the prior leases. Landlord represents and warrants that it has
full right and authority to enter into this Lease and that Tenant, upon paying
the rental herein set forth, and performing its other covenants and agreements
herein set forth shall peaceably and quietly have, hold and enjoy the Premises
for the Term without hindrance or molestation from Landlord, subject to the
terms and provisions of this Lease. Landlord agrees to make reasonable efforts
to protect Tenant from interference or disturbance by other tenants or third
persons; however, Landlord shall not be liable for any such interference or
disturbance, nor shall Tenant be released from any of the obligations of this
Lease because of such interference or disturbance.
14. Events of Default
The following events shall be deemed to be events of default by
Tenant under this Lease:
(a) Tenant shall fail to pay when or before due any sum of money
becoming due to be paid to Landlord hereunder, whether such sum be any
installment of the rent herein reserved, any other amount treated as additional
rent hereunder, or any other payment or reimbursement to Landlord required
herein, and such failure shall continue for a period of five (5) days from the
date such payment was due; or
(b) Tenant shall fail to comply with any term, provision or covenant
of this Lease other than by failing to pay when or before due any sum of money
becoming due to be paid to Landlord hereunder, and shall not cure such failure
within twenty (20) days (forthwith, if the default involves a hazardous
condition) after written notice thereof to Tenant; or
(c) Tenant shall fail to immediately vacate the Premises upon
termination of this Lease or upon termination of Tenant's right to possession
only; or
(d) The leasehold interest of Tenant shall be levied upon under
execution or be attached by process of law or Tenant shall fail to contest
diligently the validity of any lien or claimed lien and give sufficient security
to Landlord to insure payment thereof or shall fail to satisfy any judgment
rendered thereon and have the same released, and such default shall continue for
ten (10) days after written notice thereof to Tenant.
15. Remedies
Upon the occurrence of any of such events of default described in
Paragraph 14 hereof or elsewhere in this Lease, Landlord shall have the option
to pursue any one or more of the following remedies without any notice or demand
whatsoever:
(a) Landlord may, at its election, terminate this Lease or terminate
Tenant's right to possession only, without terminating the Lease.
(b) Upon any such termination of this Lease, or upon any termination
of Tenant's right to possession without termination of the Lease, Tenant shall
surrender possession and vacate the Premises immediately, and deliver possession
thereof to Landlord, and Tenant hereby grants to Landlord full and free license
to enter into and upon the Premises in such event and to repossess Landlord of
the Premises as of Landlord's former estate and to expel or remove Tenant and
any others who may be occupying or within the Premises and to remove any and all
property therefrom without being deemed in any manner guilty of trespass,
eviction or forcible entry or detainer and without incurring any liability for
any damage resulting therefrom, Tenant hereby waiving any right to claim damage
for such re-entry and expulsion, and without relinquishing Landlord's right to
rent or any other right given to Landlord hereunder or by operation of law.
(c) Upon any termination of this Lease, Landlord shall be entitled
to recover as damages, all rent, including any amounts treated as additional
rent hereunder, and other sums due and payable by Tenant on the date of
termination, plus the sum of (i) an amount equal to the then present value of
the rent, including any amounts treated as additional rent hereunder, and other
sums provided herein to be paid by Tenant for the residue of the stated Term,
less the fair rental value of the Premises for such residue, (taking into
account the time and expense necessary to obtain a replacement tenant or
tenants, including expenses hereinafter described in subparagraph (d) relating
to recovery of the Premises, preparation for reletting and for reletting itself)
which the parties agree shall in no event exceed sixty percent (60%) of the then
present value of the rent for the period, and (ii) the cost of performing any
other covenants which would have otherwise been performed by Tenant.
(d) Upon any termination of Tenant's right to possession only
without termination of the Lease, Landlord may at Landlord's option, enter into
the Premises, remove Tenant's signs and other evidences of tenancy, and take and
hold possession thereof as provided in subparagraph (b) above, without such
entry and possession terminating the Lease or releasing Tenant, in whole or in
part, from any obligation, including Tenant's obligation to pay the rent,
including any amounts treated as additional rent hereunder for the full Term. In
any such case Tenant shall pay forthwith to Landlord, if Landlord so elects, a
sum equal to the entire amount of the rent, including any amounts treated as
additional rent hereunder, for the residue of the stated Term plus any other
sums provided herein to be paid by Tenant for the remainder of the Term.
Landlord may, but need not, relet the Premises or any part thereof
for such rent and upon such terms as Landlord, in its sole discretion, shall
determine (including the right to relet the Premises for a greater or lesser
term than that remaining under this Lease, the right to relet the Premises as a
part of a larger area, and the right to change the character or use made of the
Premises). If Landlord decides to relet the Premises or a duty to relet is
imposed upon Landlord by law, Landlord and Tenant agree that Landlord shall only
be required to use the same efforts Landlord then uses to lease other properties
Landlord owns or manages (or if the Premises are then managed for Landlord, then
Landlord will instruct such manager to use the same efforts such manager then
uses to lease other space or properties which it owns or manages); provided,
however, that Landlord (or its manager) shall not be required to give any
preference or priority to the showing or leasing of the Premises over any other
space that Landlord (or its manager) may be leasing or have available and may
place a suitable prospective tenant in any such available space regardless of
when such alternative space becomes available; provided, further, that Landlord
shall not be required to observe any instruction given by Tenant about such
reletting or accept any tenant offered by Tenant unless such offered tenant has
a creditworthiness acceptable to Landlord, leases the entire Premises, agrees to
use the Premises in a manner consistent with the Lease and leases the Premises
at the same rent, for no more than the current Term and on the same other terms
and conditions as in this Lease without the expenditure by Landlord for tenant
improvements or broker's commissions. In any such case, Landlord may, but not
shall not be required to, make repairs, alterations and additions in or to the
Premises and redecorate the same to the extent Landlord deems necessary or
desirable, and Tenant shall, upon demand, pay the cost thereof, together with
Landlord's expenses of reletting, including, without limitation, any broker's
commission incurred by Landlord. If the consideration collected by Landlord upon
any reletting plus any sums previously collected from Tenant are not sufficient
to pay the full amount of all rent, including any amounts treated as additional
rent hereunder, and other sums reserved in this Lease for the remaining Term,
together with the cost of repairs, alterations, additions, redecorating, and
Landlord's expenses of reletting and the collection of the rent accruing the
refrom (including attorney's fees and broker's commissions), Tenant shall pay to
Landlord the amount of such deficiency upon demand and Tenant agrees that
Landlord may file suit from time to time to recover sums falling due under this
section.
(e) Landlord may, at Landlord's option, enter into and upon the
Premises if Landlord determines in its sole discretion that Tenant is not acting
within a commercially reasonable time to maintain, repair or replace anything
for which Tenant is responsible hereunder and correct the same, without being
deemed in any manner guilty of trespass, eviction or forcible entry and detainer
and without incurring any liability for any damage resulting therefrom and
Tenant agrees to reimburse Landlord, on demand, as additional rent, for any
expenses which Landlord may incur in thus effecting compliance with Tenant's
obligations under this Lease.
(f) Any and all property which may be removed from the Premises by
Landlord pursuant to the authority of the Lease or of law, to which Tenant is or
may be entitled, may be handled, removed and stored, as the case may be, by or
at the direction of Landlord at the risk, cost and expense of Tenant, and
Landlord shall in no event be responsible for the value, preservation or
safekeeping thereof. Tenant shall pay to Landlord, upon demand, any and all
expenses incurred in such removal and all storage charges against such property
so long as the same shall be in Landlord's possession or under Landlord's
control. Any such property of Tenant not retaken by Tenant from storage within
thirty (30) days after removal from the Premises shall, at Landlord's option, be
deemed conveyed by Tenant to Landlord under this Lease as by a xxxx of sale
without further payment or credit by Landlord to Tenant.
In the event Tenant fails to pay any installment of rent, including
any amount treated as additional rent hereunder, or other sums hereunder as and
when such installment or other charge is due, Tenant shall pay to Landlord on
demand a late charge in an amount equal to five percent (5%) of such installment
or other charge overdue in any month and five percent (5%) each month thereafter
until paid in full to help defray the additional cost to Landlord for processing
such late payments, and such late charge shall be additional rent hereunder and
the failure to pay such late charge within ten (10) days after demand therefor
shall be an additional event of default
hereunder. The provision for such late charge shall be in addition to all of
Landlord's other rights and remedies hereunder or at law and shall not be
construed as liquidated damages or as limiting Landlord's remedies in any
manner.
Pursuit of any of the foregoing remedies shall not preclude pursuit
of any of the other remedies herein provided or any other remedies provided by
law (all such remedies being cumulative), nor shall pursuit of any remedy herein
provided constitute a forfeiture or waiver of any rent due to Landlord or of any
damages accruing to Landlord. No act or thing done by Landlord or its agents
during the Term shall be deemed a termination of this Lease or an acceptance of
the surrender of the Premises, and no agreement to terminate this Lease or
accept a surrender of said Premises shall be valid unless in writing signed by
Landlord. No waiver by Landlord of any violation or breach of any of the terms,
provisions and covenants herein contained shall be deemed or construed to
constitute a waiver of any other violation or breach. Landlord's acceptance of
the payment of rental or other payments hereunder after the occurrence of an
event of default shall not be construed as a waiver of such default, unless
Landlord so notifies Tenant in writing. Forbearance by Landlord in enforcing one
or more of the remedies herein provided upon an event of default shall not be
deemed or construed to constitute a waiver of such default or of Landlord's
right to enforce any such remedies with respect to such default or any
subsequent default. If, on account of any breach or default by Tenant, it shall
become necessary or appropriate for Landlord to employ or consult with an
attorney concerning or to enforce or defend any of Landlord's rights or remedies
hereunder, Tenant agrees to pay any attorney's fees so incurred.
16. Mortgages
Tenant accepts this Lease subject and subordinate to any mortgage(s)
and/or deed(s) of trust now or at any time hereafter constituting a lien or
charge upon the Premises or the Building, provided, however, that if the
mortgagee, trustee, or holder of any such mortgage or deed or trust elects to
have Tenant's interest in this Lease superior to any such instrument, then by
notice to Tenant from such mortgagee, trustee or holder, this Lease shall be
deemed superior to such lien, whether this Lease was executed before or after
said mortgage or deed of trust. Tenant shall at any time hereafter on demand
execute any instruments, releases or other documents which may be required by
any mortgagee for the purpose of evidencing the subjection and subordination of
this Lease to the lien of any such mortgage or for the purpose of evidencing the
superiority of this Lease to the lien of any such mortgage, as may be the case.
17. Mechanic's and Other Liens
Tenant agrees that it will pay or cause to be paid all sums legally
due and payable by it on account of any labor performed or materials furnished
in connection with any work performed on the Premises on which any lien is or
can be validly and legally asserted against its leasehold interest in the
Premises and that it will save and hold Landlord harmless from any and all loss,
cost or expense based on or arising out of assorted claims or liens against the
leasehold estate or against the right, title and interest of the Landlord in the
Premises or under the terms of this Lease. If any such lien shall remain in
force and effect for twenty (20) days after written notice thereof from Landlord
to Tenant, Landlord shall have the right and privilege at Landlord's option of
paying and discharging the same or any portion thereof without inquiry as to the
validity thereof, and any amounts so paid, including expenses and interest,
shall be so much additional indebtedness hereunder due from Tenant to Landlord
and shall be repaid to Landlord immediately on rendition of a xxxx therefor.
Notwithstanding the foregoing, Tenant shall have the right to contest any such
lien in good faith and with all due diligence so long as any such contest, or
action taken in connection therewith, protects the interest of Landlord and
Landlord's mortgagee in the Premises and Landlord and any such mortgagee are, by
the expiration of said twenty (20) day period, furnished such protection, and
indemnification against any loss, cost or expense related to any such lien and
the contest thereof as are satisfactory to Landlord and any such mortgagee.
18. Notices
Any notice or document required or permitted to be delivered
hereunder shall be deemed to be delivered upon receipt if delivered personally
or by contract carrier or, whether actually received or not, when deposited in
the United States Mail, postage prepaid, Certified or Registered Mail, addressed
to the parties hereto at the respective addresses set out below, or at such
other address as they have theretofore specified by written notice delivered in
accordance herewith. If and when included within the term "Landlord" or "Tenant"
as used in this instrument, there are more than one person, firm or corporation,
all shall jointly arrange among themselves for their joint execution of such a
notice specifying some individual at some specific address for the receipt of
notices and payments. All parties included within the terms "Landlord" and
"Tenant", respectively, shall be bound by notices given in accordance with the
provisions of this paragraph to the same effect as if each had received such
notice.
19. Miscellaneous
A. The terms, provisions and covenants and conditions contained in
this Lease shall apply to, inure to the benefit of, and be binding upon, the
parties hereto and upon their respective heirs, legal representatives,
successors and permitted assigns, except as otherwise herein expressly provided.
Landlord shall have the right to assign any of its rights and obligations under
this Lease and Landlord's grantee or Landlord's successor, as the case may be,
shall upon such assignment, become Landlord hereunder, thereby freeing and
relieving the grantor or assignor, as the case may be, of all covenants and
obligations of Landlord hereunder.
B. Tenant shall at any time and from time to time within ten (10)
days after written request from Landlord execute and deliver to the Landlord or
any prospective Landlord, mortgagee or prospective mortgagee a sworn and
acknowledged estoppel certificate, in form reasonably satisfactory to Landlord
and/or such mortgagee certifying and stating accurate statements required by
Landlord or such mortgagee. It is intended that any such statement delivered
pursuant to this subsection may be relied upon by any prospective purchaser or
mortgagee and their respective successors and assigns and Tenant shall be liable
for all loss, cost or expense resulting from the failure of any sale or funding
of any loan caused by any misstatement contained in such estoppel certificate.
Tenant hereby irrevocably appoints Landlord or if Landlord is a trust,
Landlord's beneficiary, as attorney-in-fact for Tenant with full power and
authority to execute and deliver in the name of Tenant such estoppel certificate
if Tenant fails to deliver the same within such ten (10) day period and such
certificate as signed by Landlord or Landlord's beneficiary, as the case may be,
shall be fully binding on Tenant, if Tenant fails to deliver a contrary
certificate within five (5) days after receipt by Tenant of a copy of the
certificate executed by Landlord on behalf of Tenant.
C. All obligations of Tenant hereunder not fully performed as of the
expiration or earlier termination of the Term shall survive the expiration or
earlier termination of the Term, including without limitation, all payment
obligations with respect to Taxes, Operating Costs and the like and all
obligations concerning the condition of the Premises. Upon the expiration or
earlier termination of the Term, and prior to Tenant vacating the Premises,
Landlord and Tenant shall jointly inspect the Premises and Tenant shall pay to
Landlord any amount estimated by Landlord as necessary to put the Premises,
including without limitation heating and air conditioning systems and equipment
therein, in good condition and repair. Any work required to be done by Tenant
prior to its vacation of the Premises which has not been completed upon such
vacation, may be completed by Landlord at Tenant's expense. Tenant shall also,
prior to vacating Premises, pay to Landlord the amount, as estimated by
Landlord, of Tenant's obligation hereunder for Taxes and Operating Costs. All
such amounts shall be used and held by Landlord for payment of such obligations
of Tenant hereunder, with Tenant being liable for any additional costs therefor
upon demand by Landlord, or with any excess to be returned to Tenant after all
such obligations have been determined and satisfied.
D. All policies of insurance to be obtained by Tenant shall be
procured by Tenant from responsible insurance companies satisfactory to
Landlord. Certified copies of such policies, together with receipt evidencing
payment of premiums therefor, shall be delivered to Landlord prior to the
Commencement Date and not less than fifteen (15) days prior to the expiration
dates of such policies.
E. Tenant's "proportionate share" as used in this Lease shall mean a
fraction, the numerator of which is the rentable area (other than any designated
parking and loading areas) contained in the Premises and the denominator of
which is the rentable area
*Xxxxx Xxxxxx Inc.
contained in the Building, in each case as determined by Landlord. For purposes
hereof, the numerator is n/a and the denominator is n/a and Tenant's
proportionate share is __________ percent(___%).
F. Tenant represents and warrants to Landlord that it has not dealt
with any broker or finder in connection with this Lease except,* and indemnifies
and holds the other harmless from any and all loss, liability, costs or expenses
(including attorney's fees) incurred as a result of any breach of the foregoing
warranty. Landlord agrees to pay the broker, if any, listed above.
G. Neither party shall record this Lease or a memorandum hereof
without the prior written consent of the other party and the party seeking the
recording shall pay all charges and taxes incident thereto.
H. In no event shall Landlord's liability for any breach of any
contractual obligation of this Lease exceed the amount of rental then remaining
unpaid for the then current Term (exclusive of any renewal periods which have
not then actually commenced). This provision is not intended to be a measure or
agreed amount of Landlord's liability with respect to any particular breach, and
shall not be utilized by any court or otherwise for the purpose of determining
any liability of Landlord hereunder, except only as a maximum amount not to be
exceeded in any event.
EXECUTED the 15 day of July, 1996.
LANDLORD RREEF USA FUND I
a California Group Trust
By: RREEF MANAGEMENT COMPANY
a California Corporation
ATTEST/WITNESS
_______________________________ By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------------
Title:_________________________ Title: District Manager
Address: 000 Xxxxxx Xxxx
TENANT NETSAT EXPRESS INC
a Division of WorldComm Systems
Inc
000 XXXX XXXXXX
XXXXXXXXX, XX 00000
ATTEST/WITNESS
/s/ Xxxxxxxx X. Xxxxxx By: Xxxxxx X. Xxxxxx
------------------------------
Title: Supervisor Title: President
Administrator
NETSAT Express, Inc. Address: 000 Xxxx Xxx.
EXHIBIT A
attached to and made a part of Lease bearing the
Lease Reference Date of July 15, 0000 xxxxxxx
XXXXX XXX FUND I, a California Group Trust as Landlord and
NETSAT EXPRESS INC. a Division of WorldComm Systems Inc., as Tenant
MAP
This site plan is intended only to show the general layout of the property or a
part thereof. Landlord reserves the right to alter, vary, add to or omit in
whole or in part any structures, and/or improvements, and/or common areas and/or
land area shown on this plan. All measurements and distances are approximate.
This plan is not to be scaled.
HEARTLAND FOUR HUNDRED PLAZA
400 XXXX AVENUE, HAUPPAGE
EXHIBIT B
attached to and made a part of Lease bearing the
Lease Reference Date of July 15, 0000 xxxxxxx
XXXXX XXX FUND I, a California Group Trust as Landlord and
NETSAT EXPRESS INC., a Division of WorldComm Systems Inc., as Tenant
1) Tenant to occupy office area only, as per Exhibit A
1) Tenant to take space "as is"
2) Monthly rent shall be $ 2,500
3) Tenant shall pay 1st month's rent upon execution of Lease
4) Tenant shall pay Security Deposit of $ 2,500 upon execution of Lease
5) Tenant is responsible for securing the two (2) doors from entry from the
adjacent vacant space, as per Exhibit A, when not on premises, at Tenant's
sole cost & expense. Landlord reserves the right to show the space during
normal business hours.
6) Monthly rent is inclusive of rent, taxes, CAM, & utilities.
