Exhibit 10.7
COMMERCIAL LEASE AGREEMENT
THIS LEASE AGREEMENT hereafter referred to as "Lease" is made and entered
into between DSW Property Management hereafter referred to as "Lessor" and Data
Return Corporation, hereafter referred to as "Lessee."
1. LEASED PREMISES: In consideration of the rents, terms, provisions and
covenants of this Lease Agreement, Lessor hereby leases, lets and demises to
Lessee the following described premises (referred to as "Leased Premises") and
containing approximately 5088 square feet situated at 000 Xxxxxxx Xxxxx, Xxxxx
000, Xxxxxxxxx, Xxxxx 00000, further described in Exhibit A hereto.
2. TERM: Subject to and upon the conditions set forth below, the term of
this Lease shall commence on April 1, 1998 and shall terminate the last day of
March 31, 2000 (See Special Provisions).
3. RENT: Shall be as follows (subject to possible escalations in property
taxes, insurance, utilities and/or any adjustments to rent spelled out under
SPECIAL PROVISIONS).
Total monthly rent payment: $2,975.00
which amount shall be payable to Lessor at the address shown below on the first
day of the month. One monthly installment of rent shall be due and payable on
the date of execution of this Lease by Lessee for the first month's rent and a
like monthly installment shall be due and payable on or before the first day of
each calendar month succeeding the "commencement date" during the lease term
provided, that if the "commencement date" should be a date other than the first
day of a calendar month, the monthly rental set forth above shall be prorated to
the end of that calendar month, and all succeeding installments of rent shall be
payable on or before the first day of each succeeding calendar month during the
lease term.
a. On the date of execution of this Lease by Lessee, a security
deposit shall be paid by Lessee in the amount of $ (See SPECIAL
PROVISIONS) and is held for the performance by Lessee of Lessee's covenants
and obligations under this Lease, it being expressly understood that the
deposit shall not be considered an advance payment of rental or a measure
of Lessor's damage in case of default by Lessee. Upon the occurrence of any
event of default by Lessee or breach by Lessee of Lessee's covenants under
this Lease, Lessor may, from time to time without prejudice to any other
remedy, use the security deposit to the extent necessary to make good any
arrears of rent and/or any damage, injury, expense or liability caused to
Lessor by the event of default or breach of covenant and Lessee shall
immediately restore said security deposit to the full amount required under
this Lease.
b. If any increase in the fire and extended coverage insurance
premiums paid by Lessor for the building in which Lessee occupies space is
caused by Lessee's use and occupancy of the Leased Premises, or if Lessee
vacates the Leased Premises and causes an increase in such premiums, then
Lessee shall pay as additional rental the amount of such increase to
Lessor.
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c. Other remedies for non-payment of rent notwithstanding, if the
monthly rental payment is not received by Lessor (U.S. Postmark date
accepted as date received) on or before the tenth day of the month which
rent is due, or if any other payment due Lessor by Lessee is not received
by Lessor on or before the tenth day of the month, an additional TEN
PERCENT (10%) each month of such past due amount shall become due and
payable in addition to such amounts owed under this Lease. Partial
payments of rent and/or monies due from Lessee and accepted by Lessor do
not constitute payment in full. All checks for rents and/or monies due
under the terms of this Lease received by Lessor from Lessee and returned
for insufficient funds will incur an additional twenty-five dollar ($25.00)
charge to be paid by Lessee to Lessor along with the original amount plus
any applicable late fees in a cashable legal tender form and delivered in
person by Lessee and/or its agents at Lessor's official address.
4. SIGNS: No signs, pictures, notices or advertisements may be displayed
on any part of the exterior of the building on the Leased Premises without the
prior approval of Lessor as to location, size, color, material and manner of
attachment. Lessee shall maintain the Lessor-approved sign in good condition.
5. USAGE: Lessee warrants and represents to Lessor that the Leased
Premises shall be used and occupied only for the purposes of office
space/warehouse usage. Unacceptable businesses are automotive repair and
maintenance, restaurant, paint and body repair, club high personal usage
businesses or businesses in Lessor's sole opinion not compatible with the
business complex. Lessee shall occupy the Leased Premises, conduct its
business, and control its agents, employees, invitees and visitors in such a way
as is lawful, reputable, safe and will not create any nuisance or otherwise
interfere with, annoy or disturb any other tenant in its normal business
operations or Lessor in its management of the building. Lessee shall not
commit, or suffer to be committed, any waste on the Leased Premises.
6. INSURANCE: Lessee shall not permit the Leased Premises to be used in
any way which would, in the opinion of Lessor, be unusually hazardous because of
fire or would in any way increase or render void the fire insurance on leasehold
improvements or contents belonging to any tenant in the building. If at any
time during the term of this Lease the State Board of Insurance or other
insurance authority disallows any of Lessor's sprinkler credits or imposes an
additional penalty or surcharge in Lessor's insurance premiums because of
Lessee's original or subsequent placement or use of storage rack or bins, method
of storage or nature of Lessee's inventory or any other act of Lessee, Lessee
agrees to pay as additional rental the increase in Lessor's insurance premiums.
If an increase in the fire and extended coverage premiums paid by Lessor for the
building in which Lessee occupies space is caused by Lessee's use or occupancy
of the Leased Premises, then Lessee shall pay as additional rental the amount of
such increase to Lessor.
7. UTILITY SERVICE: Lessor shall provide the normal utility service
connections into the Leased Premises. Lessor also reserves the right to change
utility services without liability for interruption of service. Lessee shall
pay the cost of all utility services, including, but not limited to, initial
connection charges, all charges for gas, water and electricity used on the
Premises, or tubes, Lessee shall pay all costs caused by Lessee introducing
excessive pollutants into the sanitary sewer system, including permits, fees and
charges levied by any governmental subdivision for any pollutants or solids
other than ordinary human waste. Lessee shall be responsible for the
installation and maintenance of any dilution tanks, holding tanks, setting
tanks, sewer sampling devices, sand traps, grease traps or similar devices as
may be required by the governmental subdivision for Lessee's use of the sanitary
sewer system. If the Leased Premises are in a multi-occupancy building, Lease
shall pay all surcharges levied due to Lessee's use of sanitary sewer or waste
removal services insofar as such surcharges effect Lessor or other tenants in
the building. Lessor shall not be required to pay for any services, supplies or
upkeep in connection with the Leased Premises. However, in a multi-occupancy
building Lessor may provide water and/or other services to the Leased Premises
in which case Lessee agrees to pay to Lessor the stipulated amount or amounts
under this Lease for such services.
8. TAXES, INSURANCE, AND UTILITY INCREASES: If during the first year or
any subsequent year of this Lease, there should be increases in the cost of any
of the following: the property taxes, building insurance, commercial water,
sewer, and garbage fees, then such increases may at Lessor's discretion, be
passed on to the Lessee by raising the rent upon one full month's notice thereof
from Lessor to Lessee. The increase in the monthly rental payment and fees
shall increase by taking amount of the monthly increases times the percent of
the Lessee's leased space square footage to the total building's square footage.
9. REPAIRS AND MAINTENANCE: Unless otherwise expressly provided herein,
Lessor shall not be required to make any improvements, replacements or repairs
of any kind or character to the Leased Premises
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during the term of this Lease except such repairs as are set forth in this
subparagraph. Lessor shall maintain only the roof, foundation, underground
plumbing, outside and underground electrical, outside maintenance, and the
structural soundness of the exterior walls (excluding all windows, window glass,
plate glass and all doors) of the building in good repair and condition except
for reasonable wear and tear. Lessee shall repair and pay for any damage caused
by Lessee's negligence or default. Lessee shall give written notice to Lessor of
the need for Lessor obligated repairs, which repairs shall then be reasonably
made by Lessor. 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.
a. Lessee shall, at its own risk and expense, maintain all other
parts of the building and other improvements on the Leased Premises in good
repair and condition (including all necessary replacements), including, but
not limited to the electrical fixtures, light bulb replacement, plumbing
fixtures, pest control, air conditioning equipment, etc. Lessee shall take
good care of all the property and its fixtures. Should Lessee neglect to
keep and maintain the Leased Premises, then Lessor shall have the right,
but not the obligation, to have the work done and any reasonable costs
therefore shall be charged to Lessee as additional rental and shall become
payable by Lessee with the payment of the rental next due thereunder.
b. All requests 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 set forth below.
10. COMPLIANCE WITH LAWS, RULES AND REGULATIONS: Lessee shall comply with
all laws, ordinances, orders, rules and regulations of state, federal, municipal
or other agencies or bodies having jurisdiction relating to the use, condition
and occupancy of the Leased Premises. Lessee further agrees to comply with the
following:
a. Nothing to be stored on the outside of the building.
b. No inoperative or unlicensed vehicles are to be left in the
parking area.
c. User shall keep the immediate area outside its Leased Premises
clean of trash.
d. Lessee shall not disturb adjoining tenants with offensive
materials, odors, or loud noises.
e. Lessee shall use the trash dumpsites for on-site created garbage
use only and shall break down all empty cartons in order to use
the dumpsters effectively.
f. If Lessee's dumpster use is in Lessor's sole opinion excessive,
Lessee shall be required to make alternative arrangements for its
disposal of garbage.
g. Lessee shall not at any time occupy any part of the Leased
Premises as sleeping or lodging quarters.
h. No pets or animals are allowed in Leased Premises.
11. ALTERATIONS AND IMPROVEMENTS: Lessee shall not make or allow to be
made any alterations or physical additions in or to the Leased Premises without
first obtaining the written consent of Lessor. Any alterations, physical
additions or improvements to the Leased Premises made by Lessee shall at once
become the property of Lessor and shall be surrendered to Lessor upon the
termination of this Lease. This clause shall not apply to moveable Trade
Fixtures owned by Lessee that may be removed by Lessee at the end of the term of
this Lease if Lessee is not then in default and if Trade Fixtures are not then
subject to any other rights, liens and interests of Lessor.
12. CONDEMNATION: If the Leased Premises shall be taken or condemned for
any public purpose or for any reason whatsoever to such an extent to render it
untenantable, Lessor or Lessee shall have the option to terminate this Lease
effective as of the date of taking or condemnation and any prepaid future rents
paid to Lessor by Lessee shall be refunded. Should a portion or all of the
Property of which the Leased Premises is a part be taken or condemned for any
public purpose or for any reason whatsoever, Lessor may at his sole option
terminate this Lease effective as of the date of taking or condemnation. If
such option is exercised by Lessor, Lessor shall be obligated to refund any
prepaid
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future rents paid to Lessor by Lessee. Any awards and/or proceeds from any
taking or condemnation shall be for Lessor's benefit and Lessee waives all
claims thereto.
13. FIRE AND CASUALTY: If the Leased Premises should be totally destroyed
by fire, tornado or other casualty, or if the Leased Premises should be so
damaged so that rebuilding or repairs cannot reasonably be completed within one
hundred eighty (180) working days after the date of written notification by
Lessee to Lessor of the destruction, this Lease shall terminate and the rent
shall be abated for the unexpired portion of the Lease, effective as of the date
of the written notification.
a. If the Leased Premises should be partially damaged by fire,
tornado or other casualty, and rebuilding or repairs can reasonably be
completed within ninety (90) working days from the date of written
notification by Lessee to Lessor of the destruction, this Lease shall not
terminate, but Lessor may at its sole risk and expense proceed with
reasonable diligence to rebuild or repair the building or other
improvements to substantially the condition in which they existed prior to
the damage. If the Leased Premises are to be rebuilt or repaired and are
untenable in whole or in part following the damage, and the damage or
destruction was not caused or contributed to by act or negligence of
Lessee, its agents, employees, invitees or those for whom Lessee is
responsible, the rent payable under this Lease during the period for which
the Leased Premises are untenable shall be adjusted to such an extent as
may be fair and reasonable under the circumstances. In the event that
Lessor fails to complete the necessary repairs or rebuilding within ninety
(90) working days from the date of written notification by Lessee to Lessor
of the destruction, Lessee may at its option terminate this Lease by
delivering written notice of termination to Lessor, whereupon all rights
and obligations under the Lease shall cease to exist.
14. CASUALTY 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
building against loss or damage by fire, explosion or other hazards and
contingencies; provided, that Lessor shall not be obligated in any way or manner
to insure any personal property (including but not limited to, any furniture,
machinery, goods or supplies) of Lessee or which Lessee may have upon, or within
the Leased Premises or any fixtures installed by or paid for by Lessee upon or
within the Leased Premises or any additional improvements which Lessee may
construct on the Leased Premises. Lessor shall in no way be obligated or liable
to replace, repair or reimburse Lessee for any damages to Lessee's personal
property (including but not limited to any Trade Fixtures, inventory, goods or
supplies) and/or any interruption of Lessee's business no matter whom or what
caused such damage. It is highly recommended that Lessee obtain sufficient
insurance to cover its personal property. Any insurance which may be carried by
Lessor or Lessee insuring against damage to the building or buildings and/or any
contents therein shall be for the sole benefit of the party carrying such
insurance and under its sole control.
15. HOLD HARMLESS: Lessor, its employees and agents, shall not be liable
to Lessee and/or Lessee's employees, agents, invitees, licensees or visitors, or
to any other person, for any injury or death to person or damage to property on
or about the Leased Premises caused by the negligence or misconduct of Lessee,
its agents, servants or employees, or of any other person entering upon or about
the Leased Premises under express or implied invitation by Lessee, or caused by
the building and/or buildings and improvements located thereon of which the
Leased Premises is a part, becoming out of repair, or caused by leakage of gas,
oil, water or steam or by electricity emanating from the Leased Premises.
Lessee agrees to indemnify and hold harmless Lessor, its employees and agents
from any loss, attorneys' fees, expenses or claims arising out of any such
damage or injury. It is highly recommended that Lessee add the Lessor as an
additional insured on their liability insurance policy.
16. QUIET ENJOYMENT: Lessor warrants that he has full right to execute and
to perform this Lease and to grant the estate demised and that Lessee, upon
payment of the required rents and performing the terms, conditions, covenants
and agreements contained in this Lease, shall peaceably and quietly have, hold
and enjoy the Leased Premises during the full term of this Lease as well as any
extension or renewal thereof.
17. LESSOR'S RIGHT OF ENTRY: Lessor shall have the right, at all
reasonable hours, to enter the Leased Premise for the following reasons:
inspection, cleaning or making repairs, making alterations or additions as
Lessor may deem necessary or desirable, determining Lessee's use of the Leased
Premises, or determining if an act of default under this Lease has occurred.
Lessor shall have the right to (during the last 30 days of this Lease and during
business hours) to show the Leased Premises to prospective tenant.
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18. ASSIGNMENT OR SUBLEASE: Lessee shall have the right to transfer and
assign, in whole or in part, its rights and obligations in the building and
property that are the subject of this Lease with the following exceptions
(unacceptable businesses are automotive repair, restaurant, paint and body shop,
private club, high personnel usage business or business in Lessor's sole opinion
not compatible with the business complex). Lessee shall not assign this Lease
or sublet all or any part of the Leased Premises without the prior written
consent of Lessor which consent shall not be unreasonably withheld. Lessor
shall have the option, upon receipt from Lessee of written request for Lessor's
consent to subletting or assignment, to cancel this Lease as of the date the
requested subletting or assignment is to be effective. The option shall be
exercised, if at all, within fifteen (15) days following Lessor's receipt of
written notice by delivery to Lessee of written notice of Lessor's intention to
exercise the option. In the event of any assignment or subletting, Lessee shall
nevertheless at all times, remain fully responsible and liable for the payment
of the rent and for compliance with all of its other obligations under the
terms, provisions and covenants of this Lease. Upon the occurrence of an "event
of default" as defined below, if all or any part of the Leased Premises are then
assigned or sublet, Lessor, in addition to any other remedies provided by this
Lease or provided by law, may, at its option, collect directly from the assignee
or subtenant all rents becoming due to Lessee by reason of the assignment or
sublease, and Lessor shall have a security interest in all properties on the
Leased Premises to secure payment of such sums. Any collection directly by
Lessor from the assignee or subtenant shall not be construed to constitute a
notation or a release of Lessee from the further performance of obligations
under this Lease.
19. LANDLORD'S LIEN: As security for Lessee's payment of rent, damages and
all other payments required to be made by this Lease, Lessee hereby grants to
Lessor a lien upon all property of Lessee now or subsequently located upon the
Leased Premises. If Lessee abandons or vacates any substantial portion of the
Leased Premises or in default in the payment of any rentals, damages or other
payments required to be made by this Lease or is in default of any other
provision of this Lease, Lessor may enter upon the Leased Premises without
liability for trespass, by picking or changing locks if necessary, and take
possession of all or any part of the personal property, and may sell all or any
part of the personal property at a public or private sale, in one or successive
sales with or without notice, to the highest bidder for cash, and on behalf of
Lessee, sell and convey all or part of their personal property to the highest
bidder, delivering to the highest bidder all of Lessee's title and interest in
the personal property sold him. The proceeds of the sale of the personal
property shall be applied by Lessor toward the reasonable costs and expenses of
the sale, including attorney's fees, and then toward the payment of all sums
then due by Lessee to Lessor under the terms of this Lease; any excess remaining
shall be paid to Lessee or any other person entitled thereto by law.
20. UNIFORM COMMERCIAL CODE: To the extent, if any, this Lease grants
Lessor any lien or lien rights greater than provided by the laws of this State
(the State in which the Leased Premises are located) pertaining to "Landlord's
Liens," this Lease is intended as and constitutes a security agreement within
the meaning of the Uniform Commercial Code of this State and, Lessor, in
addition to the rights prescribed in this Lease, shall have all of the rights,
titles, liens and interests in and to Lessee's property now or hereafter located
upon the Leased Premises which are granted a secured party, as that term is
defined, under this State's Uniform Commercial Code to secure the payment to
Lessor of the various amounts provided in this Lease. Lessee will on request
execute and deliver to Lessor a financing statement for the purpose of
perfecting Lessor's security interest under this Lease or Lessor may file this
Lease or a copy thereof as a financing statement.
21. DEFAULT: The following shall be deemed to be events of default by
Lessee under this Lease:
a. Failure to pay when due any designated installment of rent or any
other payment required pursuant to this Lease and such failure shall
continue for a period of fifteen (15) days.
b. Failure to correct any other breach of a condition or requirement
of this Lease, other than the payment of Rent or any other payment required
pursuant to this Lease, within ten (10) days after written notice to
Lessee.
c. Adjudication a bankruptcy, insolvency, assignment for the benefit
of creditors, proceedings under the National Bankruptcy Act or the
appointment of a receiver or trustee of all of or substantially all of
Lessee's assets.
d. The substantial abandonment of the Leased Premises by Lessee or
failure of Lessee to operate its business from the Leased Premises and the
continuance of such failure for thirty (30) days.
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22. LESSOR'S REMEDIES: Upon occurrence of an event of default, the Lessor
may pursue any one or more of the following remedies:
a. REMEDIES, TENANT REMAINING IN POSSESSION: Upon the occurrence of
any event of default enumerated in paragraph 21 hereof, Lessor shall have
the option of (i) terminating the Lease by written notice thereof to
Lessee, (ii) continuing this Lease in full force and effect, or (iii)
curing such default on behalf of Lessee.
(1) In the event Lessor shall terminate this Lease, the
following shall occur. Upon written notice to Lessee, this Lease shall
be ended to Lessee and all persons holding under Lessee, and all of
Lessee's rights shall be forfeited and lapsed, as fully as if this
Lease had expired by lapse of time and there shall immediately become
due and payable the amount by which (i) the total of the rent and the
benefits which would have accrued to Lessor under this Lease for the
remainder of the term if the terms and provisions of this Lease had
been fully complied with by Lessee exceeds (ii) the then-fair-market
rental value of the premises for the balance of the term (it being the
intention of both parties hereto that Lessor shall receive the benefit
of its bargain); and the Lessee shall immediately surrender the Leased
Premises to Lessor. If Lessee shall fail to do so, Lessor may without
notice and prejudice to any other remedy available enter and take
possession of the Leased Premises and remove Lessee and/or anyone
occupying the Leased Premises and its effects without being liable to
prosecution or any claim for damages, in addition to the sum
immediately due from Lessee under the foregoing provision, there shall
be recoverable from Lessee:
(a) the cost of restoring said Leased Premises to good
condition, normal wear and tear excepted;
(b) all accrued sums, plus interest at the rate of ten
percent (10%) per annum and charges, if in
arrears, under the terms of this Lease up to the
date of termination;
(c) Lessor's cost of recovering possession of the
Leased Premises; and
(d) Rent and sums accruing subsequent to the date of
termination pursuant to the holdover provisions of
paragraph 8.
(2) In the event that Lessor shall elect to continue this Lease
in full force and effect and Lessee shall continue to be liable for
all rents, Lessor shall nevertheless have all the rights of re-entry
upon said Leased Premises without becoming liable for damages, or
guilty of a trespass and Lessor after re-entry may relet the Leased
Premises or any part thereof, for a period of time equal to or lesser
or greater than the remainder of the term on whatever terms and
conditions Lessor, at Lessor's sole discretion, deems advisable.
Against the rents and sums due from Lessee to Lessor during the
remainder of the term, credit shall be given Lessee in the net amount
of rent received from the new tenant after deduction by Lessor for:
(i) the cost incurred by Lessor in reletting the Leased Premises
(including, without limitation, remodeling costs, brokerage fees and
the like; (ii) the accrued sums, plus interest and late charges if in
arrears, under the terms of this Lease; (iii) Lessor's cost of
recovering possession of the Leased Premises; and (iv) the cost of
storing any of Lessee's property left on the Leased Premises after re-
entry.
Notwithstanding any provision in this paragraph 23 to the
contrary, upon the default of any substitute tenant or upon the
expiration of the lease term of such substitute tenant before the
expiration of the term hereof, Lessor may, at Lessor's election,
either relet to still another substitute tenant, or terminate this
Lease and exercise its rights under this paragraph 22.
(3) In the event Lessor shall elect to cure the default of
Lessee at Lessor's expense, the cost of such cure plus interest
thereon at the rate of ten percent (10%) per annum shall become
additional rent and shall become due immediately.
b. REMEDIES, ABANDONMENT: Upon abandonment, Lessor shall have the
option of either: (1) terminating this Lease by written notice thereof to
Lessee, or (2) continuing this Lease in full force and
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effect. 22a(1) shall be applicable except subparagraph (c) (costs of
recovering possession) and subparagraph (d) (holdover rent). In the event
Lessor shall continue this Lease in full force and effect, Lessor may from
time to time xxx Lessee to recover all amounts accrued to the date of suit
under the terms and provisions of the Lease (plus legal costs) without such
suit constituting termination of this Lease or relet the Leased Premises
under all the terms and provisions hereof except costs of recovering the
Leased Premises.
23. WAIVER OF DEFAULT OR REMEDY: 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 paragraph 22 above shall not preclude
pursuits of any one or more of the other remedies provided elsewhere in this
Lease or provided by law, nor shall pursuit of any remedy provided constitute a
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.
24. SURRENDER AT TERMINATION: At the expiration or termination of this
Lease, Lessee shall peaceably vacate the Leased Premises and deliver all
alterations and additions thereto in good repair and condition, reasonable wear
and tear expected, restoring the Leased Premises wherever necessary and leaving
it clean and neat. Any of Lessee's trade fixtures and/or personal property not
removed at the expiration or other termination of this Lease (or within seventy-
two (72) hours after a termination by reason of Lessee's default may be
appropriated, sold, destroyed or otherwise disposed of by Lessor without notice
or obligation to compensate Lessee or to account for such disposition, Lessee
shall pay to Lessor all costs incurred by Lessor in connection therewith.
Lessee's obligations under this section shall survive expiration or other
termination of this Lease.
25. ACTS OF GOD: Lessor shall not be required to perform any covenant or
obligation in this Lease, or be liable in damages to Lessee, so long as the
performance or non-performance of the covenant or obligation is delayed, caused
by or prevented by an act of God or force majeure.
26. ATTORNEY'S FEES: In the event Lessee defaults in the performance of
any of the terms, covenants, agreements or conditions contained in this Lease
and Lessor places in the hands of an attorney the enforcement of all or any part
of this Lease, the collection of any rent due or to become due or recovery of
the possession of the Leased Premises, Lessee agrees to pay Lessor reasonable
attorney's fees for the services of the attorney, whether suit is actually filed
or not. In no event shall the attorney's fees be less than fifteen percent
(15%) of the outstanding balance owed by Lessee to Lessor.
27. HOLDING OVER: Unless otherwise notified by Lessor, if Lessee shall
continue to occupy the Leased Premises following the expiration of this Lease
Agreement, such occupancy shall be deemed a month-to-month tenancy. During such
tenancy all terms, provisions and conditions of the Lease Agreement shall apply
to the month-to-month tenancy except those terms, provisions and conditions
pertaining to the Lease Term. Such month-to-month tenancy may be terminated by
either Lessor or Lessee with at least one full month's previous written notice
to the other party.
a. If Lessee continues to occupy the Leased Premises after the
expiration or earlier termination of this Lease Agreement against Lessor's
will or if Lessee fails to renew this Lease Agreement at Lessor's request
prior to the expiration of this Lease Agreement or under a month-to-month
tenancy one full month after notice of such lease renewal request from
Lessor to Lessee, Lessee agrees to pay Lessor as Liquidated Damages for
each month of continued occupancy an amount equal to one and one-half (1.5)
times the rent being paid for the month the Lease Agreement expires or is
terminated. No receipt of money after the expiration or termination of
this Lease Agreement shall reinstate or extend this Lease or affect any
prior notice given by Lessor to Lessee.
28. RIGHTS OR MORTGAGEE: Lessee accepts this Lease subject and subordinate
to any recorded mortgage, deed of trust or other lien presently existing upon
the Leased Premises. Lessor is hereby irrevocably vested with full power and
authority to subordinate Lessee's interest under this Lease to any mortgage,
deed of trust or other lien hereafter placed on the Leased Premises, and Lessee
agrees upon demand to execute additional instruments subordinating this Lease as
Lessor may require. If the interests of Lessor under this Lease shall be
transferred by reason of foreclosure or other proceedings for enforcement of any
mortgage on the Leased Premises, Lessee shall be bound to
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the transferee (sometimes called the "Purchaser") under the terms, covenants and
conditions of this Lease for the balance of the term remaining, and any
extensions or renewals, with the same force and effect as if the Purchaser were
Lessor under this Lease, and Lessee agrees to attorn to the Purchaser, including
the mortgagee under any such mortgage if it be the Purchaser's as its Lessor,
the attornment to be effective and self-operative without the execution of any
further instruments upon the Purchaser succeeding to the interest of Lessor
under this Lease. The respective rights and obligations of Lessee and the
Purchaser upon the attornment, to the extent of the then remaining balance of
the term of this Lease, and any extensions and renewals, shall be and are the
same as those set forth in this Lease.
29. LIABILITY OF LESSOR - SALE BY LESSOR: Lessee shall look solely to
Lessor's interest in the building and land upon which the Leased Premises is
situated, for recovery of any judgment against Lessor. A sale, conveyance, or
assignment of Lessor's interest in the Leased Premises shall operate to release
Lessor from all the covenants, terms, and conditions of this Lease, expressed or
implied, and Lessee agrees to look solely to the successor in interest of the
Lessor for the performance of such obligations.
30. ESTOPPEL CERTIFICATES: Lessee agrees to furnish promptly, from time to
time, upon request of Lessor or Lessor's mortgagee, a statement certifying that
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 paid and will not be paid for more
than one month in advance; there is no existing default by reason of some act or
omission by Lessor; and such other matters as may be reasonably required by
Lessor or Lessor's mortgagee.
31. 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
the 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.
32. RENT TAX: If applicable in the jurisdiction where the Leased Premises
are situated, Lessee shall pay and be liable for all rental, sales and use taxes
or other similar taxes, if any, levied or imposed by any city, state, county or
other governmental body having authority, such payments to be in addition to all
other payments required to be paid to Lessor by Lessee under the terms of this
Lease. Any such payment shall be paid concurrently with the payment of the rent
upon which the tax is based as set forth above.
33. NOTICE: All rent and other payments required to be made by Lessee
shall be payable to Lessor at the address set forth below, or any other address
Lessor may specify from time to time by written notice delivered to Lessee.
a. All payments required to be made by Lessor to Lessee shall be
payable to Lessee at the address set forth below, or at any other address
within the United States as Lessee may specify from time to time by written
notice.
b. Any notice or document required or permitted to be delivered by
this Lease shall be deemed to be delivered (whether or not actually
received) when deposited in the United States Mail, postage prepaid,
certified or registered mail, return receipt requested, addressed to the
parties at the respective addresses (Legal Address) set out at the end of
the main body of this Lease.
34. DEFINITIONS: These definitions apply to the terms defined as those
terms used throughout this Lease.
a. "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.
b. An "Act of God' or "force majeure" is defined for purpose of this
Lease as strikes, lockouts, sit-downs, material or labor restrictions by
any governmental authority, riots, floods, washouts, explosions,
earthquakes, fire, storms, acts of the public enemy, wars, insurrections
and any other cause not reasonable within the control of Lessor and which
by the exercise of due diligence Lessor is unable, wholly or in part, to
prevent or overcome.
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c. The "commencement date" shall be the date set forth in paragraph
2. The "commencement date" shall constitute the commencement of this Lease
Agreement for all purposes, whether or not Lessee has actually taken
possession.
d. "Real property tax" means all city, state and county taxes and
assessments including special district taxes or assessments.
e. The captions appearing in this Lease are inserted only as a
matter of convenience and in no way define, limit, construe or describe the
scope or intent of such paragraph.
35. ACCEPTANCE OF LEASED PREMISES: Lessee acknowledges that it has
inspected the Leased Premises and accepts the same and the improvements erected
thereon in their present condition as suitable for the purpose for which the
same are leased.
36. SEVERABILITY: Should any part or provision of this Lease or the
application thereof to any person or circumstance be invalid or unenforceable to
any extent, the remainder of this Lease and the application of such provisions
to other persons or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by law.
37. CORPORATE AUTHORITY: If Lessee executes this Lease as a corporation,
the person or persons executing this Lease on behalf of Lessee do hereby
personally represent and warrant that Lessee is a duly authorized and existing
corporation and the Lessee is qualified to do business in the state in which the
Leased Premises are located. That the corporation has full right and authority
to enter into this Lease, and that each person signing on behalf of the
corporation is authorized to do so. In the event any representation or warranty
is false, all persons who execute this Lease shall be liable, individually, as
Lessee.
38. ENTIRE AGREEMENT AND LIMITATION OF WARRANTIES: IT IS EXPRESSLY AGREED
BY LESSEE, AS A MATERIAL CONSIDERATION FOR THE EXECUTION OF THIS LEASE, THAT
THIS LEASE, WITH THE SPECIFIC REFERENCES TO WRITTEN EXTRINSIC DOCUMENTS, IS THE
ENTIRE AGREEMENT OF THE PARTIES, THAT THERE ARE, AND WERE, NO VERBAL
REPRESENTATIONS, WARRANTIES, UNDERSTANDINGS, STIPULATIONS, AGREEMENTS OR
PROMISES AND/OR IMPLICATIONS BY WAY OF LESSOR'S ACTIONS OR LACK THEREOF
PERTAINING TO THIS LEASE OR THE EXPRESSLY MENTIONED WRITTEN EXTRINSIC DOCUMENTS
NOT INCORPORATED IN WRITING IN THIS LEASE. LESSOR AND LESSEE EXPRESSLY AGREE
THAT THERE ARE AND SHALL BE NO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OR
OF ANY OTHER KIND ARISING OUT OF THIS LEASE. IT IS LIKEWISE AGREED THAT THIS
LEASE MAY NOT BE ALTERED, WAIVED, AMENDED OR EXTENDED EXCEPT BY AN INSTRUMENT IN
WRITING SIGNED BY BOTH LESSOR AND LESSEE.
39. PLACE OF PERFORMANCE: Any legal suit arising from or relating to this
Lease shall be brought in Collin County in the State of Texas, except eviction
proceedings, which shall take place in the county where the Leased Premises
lies.
40. SPECIAL PROVISIONS:
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1. SECURITY DEPOSIT: Lessee shall not be required to post a
security deposit as a result of taking the leased premises
"as is". However, Lessee shall be liable to pay, prior to
termination of the Lease, for any damages to the Leased
Premises or repair any items in disrepair. All rents and
other fees required under this Lease shall have to be paid
in advance of Lease termination.
2. EARLY TERMINATION: Lessee may terminate this Lease any time
after April 1, 1999 by giving Lessor two (2) months written
notice of a desire to vacate the Leased Premises. Notice
becomes effective on the first day of the month following
receipt of the notice. Lessor shall at that time be allowed
to market and show the Leased Premises to potential tenants.
If the Lessor is unable to find another client to take the
Leased Premises, Lessee shall be required to pay a
termination penalty equivalent to $5,950.00 to be made
payable in the form of a cashier's check five (5) days prior
to Lease termination. If during the five (5) days prior to
Lease termination, Lessor shall find a qualified new tenant
for the space, Lessor shall be required to refund the
termination penalty within ten (10)
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9
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days following the termination date. The new tenant must
take possession of the Leased Premises and have paid all
deposits and rents.
3. PARKING: Parking is limited to the areas immediately in
front and behind the Leased Premises and on a not-to-
interfere basis at other tenants within the 000-000 Xxxxxxx
Xxxxx complex. Should excessive parking become a problem, in
the sole opinion of the Lessor, Lessee shall be required to
lease additional off-site parking for employee use at
Lessee's expense.
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Executed the 31 day of March, 1998.
LESSOR: LESSEE:
DSW Property Management Data Return Corporation
-------------------------------------------- ---------------------------------
(Lessor Name) (Lessee Name)
a ((Lessor Business Type)) a corporation
------------------------------------------ -------------------------------
(ex: corporation, partnership or sole (ex: corporation, partnership or
proprietor) sole proprietor)
by /s/ Xxxxxx X. Xxxxxxx by /s/ Xxxxxxxx X. Xxxxxxxx
---------------------------------------- ------------------------------
Signature Signature
Xxxxxx X. Xxxxxxx, Owner/Managing Partner Xxxxxxxx X. Xxxxxxxx
-------------------------------------------- ---------------------------------
(Print Name and Title) (Print Name and Title)
Ph # (000) 000-0000 Ph #'s (0) 000-000-0000
(000) 000-0000 Pager 000-000-0000
(Fax) 000-000-0000
LESSOR'S LESSEE'S
LEGAL ADDRESS: LEGAL MAILING ADDRESS:
0000 XXXXXXXXX XX., XXXXX 0X 000 Xxxxxxx Xx., Xxx 000
-------------------------------------------- ---------------------------------
XXXXXX, XXXXX 00000 Xxxxxxxxx, XX 00000
-------------------------------------------- ---------------------------------
00
XXXXXXX XX XXXXXXX, XXXXXXXXX, XXXXX 00000
EXHIBIT "A"
-----------
The Leased Premises can be legally described as a portion (Suite 120) of
that one story building known as 000 Xxxxxxx Xxxxx situated on Xxx 0, Xxxxx 0,
Xxxxxxx Xxxx, an addition to the City of Arlington, Tarrant County, Texas, as
recorded in Volume 388-164, Page 5 of the Plat Records of Tarrant County, Texas.
[Graphic of Leased Premises]
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