Exhibit 10.7
DFW CORPORATE PARK LEASE
1. BASIC LEASE TERMS
a. DATE OF LEASE PREPARATION: June 21, 2000
b. TENANT: ▇▇▇▇▇ Bros. Electronics, Inc., a New Jersey Corporation
Trade Name: __________________________________________________________
Address (Leased Premises): ▇▇▇▇ ▇▇▇. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
c. LANDLORD: EAGLE-DFW CORPORATE PARK, L.P.
BY: EAGLE-DFW, INC., IT'S GENERAL PARTNER
Address (For Notices): ▇▇▇▇ ▇▇▇. ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇ with a copy to Eagle Equity Management, Inc., ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ or to such other place as Landlord may
from time to time designate by notice to tenant.
d. TENANT'S ONLY PERMITTED USE OF PREMISES: Sales and administrative
office for electronic security device company.
e. PREMISES AREA: 4200 Rentable Square Feet
f. PROJECT AREA: 211,385 Square Feet
Unless otherwise indicated herein, any statement of square footage,
rentable or otherwise, set forth in this Lease, or which may have been
used in calculating rental or any other amount due under the lease, is
an approximation which Landlord and Tenant agree is reasonable, and
the rental or any other calculation based upon square footage is not
subject to revision whether or not the actual square footage is more
or less.
g. PREMISES PERCENT OF PROJECT: 1.99%
h. TERM OF LEASE: Commencement: October 1st, 2000
EXPIRATION: January 31st, 2004 Number of Months Forty (40) months
i. BASE MONTHLY RENT: $3,340.00 Please remit payments to:
Eagle Equity, Inc.
P.O. Box 910498
Dallas, TX 75391-0498
j. RENT ADJUSTMENT (Initial One):
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LANDLORD
--------------- [(1) Cost of Living. If this provision is initialed, the
TENANT cost of living provisions of section 4.b(1) apply.]
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---------------
LANDLORD
--------------- (2) Step Increase. If this provision is initialed, the step
TENANT adjustment provisions of Section 4.b(2) apply as
--------------- follows:
Effective Date of New Base
Rent Increase Monthly Rent
February 1st , 2001 $3,442.00
, 20 3
, 20
k. EXPENSE BASE:
Expense Stop
or
Base Year 1998
l. PREPAID RENT: $ N/A
m. TOTAL SECURITY DEPOSIT: $3,442.00 including a $125.00 non-refundable
cleaning fee. ($2,625.00 currently on hand)
n. BROKER(S): N/A
o. GUARANTORS:
p. ADDITIONAL SECTIONS
Additional sections of this lease numbered 33 through 34 are attached
hereto and made a part hereof.
ADDITIONAL EXHIBITS
Additional exhibits lettered A through E are attached hereto and made
a part hereof.
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2. PREMISES: Landlord leases to Tenant the premises described in Section 1 and
in Exhibit A (the "Premises"), located in this project described on Exhibit
B (the "Project"). Landlord reserves the right to modify Tenant's
percentage of the Project as set forth in Section 1 if the Project size is
increased through the development of additional property. By entry on the
Premises, ▇▇▇▇▇▇ acknowledges that it has examined the Premises and accepts
the Premises in their present condition, subject to any additional work
Landlord has agreed to do.
3. TERM. The term of this Lease is for the period set forth in Section 1
commencing on the date in Section 1. If Landlord, for any reason, cannot
deliver possession of the Premises to Tenant upon commencement of the term,
this Lease shall not be void or voidable, nor shall Landlord be liable to
Tenant for any loss or damage resulting from such delay. In that event,
however, there shall be a rent abatement covering the period between the
commencement of the term and the time when Landlord delivers possession to
Tenant, and all other terms and conditions of this Lease shall remain in
full force and effect, provided, however, that if Landlord cannot deliver
possession of the Premises to Tenant, this Lease shall be void. If a delay
in possession is caused by ▇▇▇▇▇▇'s failure to perform any obligation in
accordance with this Lease the term shall commence as set forth in Section
1 and there shall be no reduction of rent between the commencement of the
term and the time Tenant takes possession.
4. RENT.
a. Base Rent. Tenant shall pay Landlord monthly base rent in the initial
amount in Section 1 which shall be payable monthly in advance on the
first day of each and every calendar month ("Base Monthly Rent")
provided, however, the first month's rent is due and payable upon
execution of this Lease. If the term of this Lease contains any rental
abatement period, Tenant hereby agrees that if Tenant breaches the
Lease and/or abandons the Premises before the end of the Lease term,
or if ▇▇▇▇▇▇'s right to possession is terminated by Landlord because
of Tenant's breach of the Lease, Landlord shall, at its option, (1)
void the rental abatement period; and (2) recover from Tenant in
addition to any damages due Landlord under the terms and conditions of
the Lease, rent prorated for the duration of the rental abatement
period at a rental rate equivalent to two (2) times the Base Monthly
Rent.
For purposes of Section 467 of the Internal Revenue Code, the parties
to this Lease hereby agree to allocate the stated rents, provided
herein, to the periods which correspond to the actual rent payments as
provided under the terms and conditions of this agreement.
b. Rent Adjustment.
[1) Cost of Living Adjustment. If Section 1 .j.(1) is initialed, the
Base Monthly Rent shall be subject to increase on each annual
anniversary of the commencement of the term of this Lease. The
base for computing the increase is the Consumer Price Index All
Urban Consumers U.S. City Average (1982-84 = 100), published by
the United States Department of Labor, Bureau of Labor Statistics
("Index"), which is in effect on the ninetieth (90th) day
preceding the date of the commencement of the term ("Beginning
Index"). The Index published and in effect on the ninetieth
(90th) day preceding each anniversary of the commencement of the
term of this Lease ("Extension Index") is to be used in
determining the amount of the increase from one year to the next.
Beginning with the rent due on and after the first anniversary of
the commencement of the term of this Lease, and on and after each
subsequent anniversary, the Base Monthly Rent shall be increased
to equal the product achieved by multiplying the initial full
Base Monthly Rent due with respect to the month immediately
preceding such anniversary date by a fraction. On the first
anniversary of the Commencement Date, the numerator of the
fraction will be the Extension Index and the denominator will be
the Beginning Index. On the second and any subsequent
anniversaries of the Commencement Date, the numerator of the
fraction will be the current Extension Index and the denominator
will be the Extension Index used to calculate the previous year's
rental increase. If there is a decline from one lease year to the
next in the Extension Index, the monthly rent due during the
subsequent lease year shall equal the monthly rent due during the
then present lease year.
If the Index is changed so that the base year differs from that
in effect when the term commences, the Index shall be converted
in accordance with the conversion factor published by the United
States Department of Labor, Bureau of Labor Statistics. If the
Index is discontinued or revised during the term, such other
government index or computation with which it is replaced shall
be used in order to obtain substantially the same result as would
be obtained if the Index had not been discontinued or revised.]
2) Step Increase. If Section 1 .j.(2) is initialed, Base Monthly
Rent shall be increased periodically to the amounts and at the
times set forth in Section 1 .j.(2).
c. Expenses. The purpose of this Section 4.c is to ensure that Tenant
bears a share of all Expenses related to the use, maintenance,
ownership, repair or replacement, and insurance of the Project.
Accordingly, beginning on the date Tenant takes possession of the
Premises, Tenant shall pay to Landlord that portion of Tenant's share
of Expenses related to the Project which is in excess of the Annual
Expense Base shown in Section 1.
1) Expenses Defined. The term "Expenses" shall mean all costs and
expenses of the ownership, operation, maintenance, repair or
replacement, and insurance of the Project, including without
limitation, the following costs:
(a) All supplies, materials, labor, equipment, and utilities
used in or related to the operation and maintenance of the
Project;
(b) All maintenance, management, janitorial, legal, accounting,
insurance, and service agreement costs related to the
Project;
(c) All maintenance, replacement and repair costs relating to
the areas within or around the Project, including, without
limitation, air conditioning systems, sidewalks,
landscaping, service areas, driveways, parking areas
(including resurfacing and restriping parking areas),
walkways, building exteriors (including painting), signs and
directories, repairing and replacing roofs, walls, etc.
These costs may be included either based on actual
expenditures or the use of an accounting reserve based on
past cost experience for the Project.
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(d) Amortization (along with reasonable financing charges) of
capital improvements made to the Project which may be
required by any government authority or which will improve
the operating efficiency of the Project (provided, however,
that the amount of such amortization for improvements not
mandated by government authority shall not exceed in any
year the amount of costs reasonably determined by Landlord
in its sole discretion to have been saved by the expenditure
either through the reduction or minimization of increases
which would have otherwise occurred).
(e) Real Property Taxes including all taxes, assessments
(general and special) and other impositions or charges which
may be taxed, charged, levied, assessed or imposed upon all
or any portion of or in relation to the Project or any
portion thereof, any leasehold estate in the Premises or
measured by rent from the Premises, including any increase
caused by the transfer, sale or encumbrance of the Project
or any portion thereof. "Real Property Taxes" shall also
include any form of assessment, levy, penalty, charge or tax
(other than estate, inheritance, net income or franchise
taxes) imposed by any authority having a direct or indirect
power to tax or charge, including, without limitation, any
city, county, state, federal or any improvement or other
district, whether such tax is (1) determined by the area of
the Project or the rent or other sums payable under this
Lease; (2) upon or with respect to any legal or equitable
interest of Landlord in the Project or any part thereof; (3)
upon this transaction or any document to which Tenant is a
party creating a transfer in any interest in the Project;
(4) in lieu of or as a direct substitute in whole or in part
of or in addition to any real property taxes on the Project;
(5) based on any parking spaces or parking facilities
provided in the Project; or (6) in consideration for
services, such as police protection, fire protection,
street, sidewalk and roadway maintenance, refuse removal or
other services that may be provided by any governmental or
quasi-governmental agency from time to time which were
formerly provided without charge or with less charge to
property owners or occupants.
2) Annual Estimate of Expenses. When ▇▇▇▇▇▇ takes possession of the
Premises, Landlord shall estimate Tenant's portion of Expenses
for the remainder of the calendar year based on the Tenant's
portion of the Project Area set forth in Section 1. At the
commencement of each calendar year thereafter, Landlord shall
estimate Tenant's portion of Expenses for the coming year based
on the Tenant's portion of the Project Area set forth in Section
1.
3) Monthly Payment of Expenses. If ▇▇▇▇▇▇'s portion of said estimate
of Expenses shows an increase for the remainder of the calendar
year over the Annual Expense Base, as set forth in Section 1,
Tenant shall pay to Landlord, as additional rent, such estimated
increase in monthly installments of one-twelfth (1/12) beginning
on the date Tenant takes possession of the Premises. If ▇▇▇▇▇▇'s
portion of said estimate of Expenses shows an increase for
subsequent calendar years over the Annual Expense Base, as set
forth in Section 1 ,Tenant shall pay to Landlord, as additional
rent, such estimated increase in monthly installments of
one-twelfth (1/12) beginning on January 1 of the forthcoming
calendar year, and one-twelfth (1/12) on the first day of each
succeeding calendar month. As soon as practical following each
calendar year, Landlord shall prepare an accounting of actual
Expenses incurred during the prior calendar year and such
accounting shall reflect Tenant's share of Expenses. If the
additional rent paid by Tenant under this Section 4.c.3 during
the preceding calendar year was less than the actual amount of
Tenant's share of Expenses, Landlord shall so notify Tenant and
Tenant shall pay such amount to Landlord within 30 days of
receipt of such notice. Such amount shall be deemed to have
accrued during the prior calendar year and shall be due and
payable from Tenant even though the term of this Lease has
expired or this Lease has been terminated prior to ▇▇▇▇▇▇'s
receipt of this notice. Tenant shall have thirty (30) days from
receipt of such notice to contest the amount due; failure to so
notify Landlord shall represent final determination of Tenant's
share of expenses. If Tenant's payments were greater than the
actual amount, then such overpayment shall be credited by
Landlord to all present rent due under this Section 4.c.3.
4) Rent Without Offset and Late Charge. All rent shall be paid by
Tenant to Landlord monthly in advance on the first day of every
calendar month, at the address shown in Section 1, or such other
place as Landlord may designate in writing from time to time. All
rent shall be paid without prior demand or notice and without any
deduction or offset whatsoever. All rent shall be paid in lawful
currency of the United States of America All rent due for any
partial month shall be prorated at the rate of 1/30th of the
total monthly rent per day. Tenant acknowledges that late payment
by Tenant to Landlord of any rent or other sums due under this
Lease will cause Landlord to incur costs not contemplated by this
Lease, the exact amount of such costs being extremely difficult
and impracticable to ascertain. Such costs include, without
limitation, processing and accounting charges and late charges
that may be imposed on Landlord by the terms of any encumbrance
or note secured by the Premises. Therefore, if any rent or other
sum due from Tenant is not received when due, Tenant shall pay to
Landlord an additional sum equal to 10% of such overdue payment.
Landlord and Tenant hereby agree that such late charge represents
a fair and reasonable estimate of the costs that Landlord will
incur by reason of any such late payment and that the late charge
is in addition to any and all remedies available to the Landlord
and that the assessment and/or collection of the late charge
shall not be deemed a waiver of any other default. Additionally,
all such delinquent rent or other sums, plus this late charge,
shall bear interest at the then maximum lawful rate permitted to
be charged by Landlord. Any payments of any kind returned for
insufficient funds will be subject to an additional handling
charge of $25.00, and thereafter, Landlord may require Tenant to
pay all future payments of rent or other sums due by money order
or cashier's check
5. PREPAID RENT. Upon the execution of this Lease, Tenant shall pay to
Landlord the prepaid rent set forth in Section 1, and if Tenant is not in
default of any provisions of this Lease, such prepaid rent shall be applied
toward the rent due for the last month of the term. Landlord's obligations
with respect to the prepaid rent are those of a debtor and not of a
trustee, and Landlord can commingle the prepaid rent with Landlord's
general funds. Landlord shall not be required to pay Tenant interest on the
prepaid rent. Landlord shall be entitled to immediately endorse and cash
Tenant's prepaid rent; however, such endorsement and cashing shall not
constitute Landlord's acceptance of this lease. In the event Landlord does
not accept this Lease, Landlord shall return said prepaid rent.
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6. DEPOSIT. Upon execution this Lease, Tenant shall deposit the security
deposit set forth in Section 1 with Landlord, in part as security for the
performance by Tenant of the provisions of this Lease and in part as a
cleaning fee. If Tenant is in default, Landlord can use the security
deposit or any portion of it to cure the default or to compensate Landlord
for any damages sustained by Landlord resulting from ▇▇▇▇▇▇'s default. Upon
demand, ▇▇▇▇▇▇ shall immediately pay to Landlord a sum equal to the portion
of the security deposit expended or applied by Landlord to maintain the
security deposit in the amount initially deposited with Landlord. In no
event will Tenant have the right to apply any part of the security deposit
to any rent or other sums due under this Lease. If Tenant is not in default
at the expiration or termination of this Lease, Landlord shall return the
entire security deposit to Tenant, except for 10% of first month's rent or
$125, whichever is greater, which Landlord shall retain as a non-refundable
cleaning fee. Landlord's obligations with respect to the deposit are those
of a debtor and not of a trustee, and Landlord can commingle the security
deposit with ▇▇▇▇▇▇▇▇'s general funds. Landlord shall not be required to
pay Tenant interest on the deposit. Landlord shall be entitled to
immediately endorse and cash ▇▇▇▇▇▇'s prepaid deposit; however, such
endorsement and cashing shall not constitute Landlord's acceptance of this
Lease. In the event Landlord does not accept this Lease, Landlord shall
return said prepaid deposit
7. USE OF PREMISES AND PROJECT FACILITIES. Tenant shall use the Premises
solely for the purposes set forth in Section 1 and for no other purpose
without obtaining the prior written consent of Landlord. Tenant
acknowledges that neither Landlord nor any agent of Landlord has made any
representation or warranty with respect to the Premises or with respect to
the suitability of the Premises or the Project for the conduct of Tenant's
business, nor has Landlord agreed to undertake any modification, alteration
or improvement to the Premises or the Project, except as provided in
writing in this Lease. Tenant acknowledges that Landlord may from time to
time, at its sole discretion, make such modifications, alterations,
deletions or improvements to the Project as Landlord may deem necessary or
desirable, without compensation or notice to Tenant. Tenant shall promptly
comply with all laws, ordinances, orders and regulations affecting the
Premises and the Project, including, without limitation, any rules and
regulations that may be attached to this Lease and to any reasonable
modifications to these rules and regulations as Landlord may adopt from
time to time. Tenant shall not do or permit anything to be done in or about
the Premises or bring or keep anything in the Premises that will in any way
increase the premiums paid by Landlord on its insurance related to the
Project or which will in any way increase the premiums for fire or casualty
insurance carried by other tenants in the Project Tenant will not perform
any act or carry on any practices that may injure the Premises or the
Project; that may be a nuisance or menace to other tenants in the Project;
or that shall in anyway interfere with the quiet enjoyment of such other
tenants. Tenant shall not use the Premises for sleeping, washing clothes,
cooking or the preparation, manufacture or mixing of anything that might
emit any objectionable odor, noises, vibrations or lights onto such other
tenants. If sound insulation is required to muffle noise produced by Tenant
on the Premises, Tenant at its own cost shall provide all necessary
insulation. Tenant shall not do any thing on the premises which will
overload any existing parking or service to the Premises. Pets and/or
animals of any type shall not be kept on the Premises with the exception of
seeing-eye dogs.
Only trash generated in the normal course of the business of ▇▇▇▇▇▇'s
Permitted Use, and only such trash actually generated by work on site in
the Leased Premises, may be disposed of in trash containers at the
designated locations. Only the materials permitted by law to be disposed of
in the containers may be so disposed of, and under no circumstances may
"hazardous waste" materials be disposed of in project trash containers. No
trash or scrap materials may be brought into the Premises, Project or
Property at any time for disposal, storage, or any other purpose. No
"trade" trash, including but not limited to, industrial scrap, carpet
scrap, or wallboard may be disposed of in the containers. No storing of
trash or scrap is permitted in or about the Premises, Project or Property.
In the event Lessee generates more trash by work on site in the Leased
Premises in the normal course of Tenant's permitted use than can be handled
with the current pickup, Tenant shall be assessed the costs, and Tenant
shall be exclusively responsible immediately to pay for upon demand, any
additional service.
8. SIGNAGE. All signing shall comply with rules and regulations set forth by
landlord as may be modified from time to time. Current rules and
regulations relating to signs are described on Exhibit C. Tenant shall
place no window covering (e.g., shades, blinds, curtains, drapes, screens,
or tinting materials), stickers, signs, lettering, banners or advertising
or display material on or near exterior windows or doors if such materials
are visible from the exterior of the Premises, without Landlord's prior
written consent. Similarly, Tenant may not install any alarm boxes, foil
protection tape or other security equipment on the Premises without
Landlord's prior written consent. Any material violating this provision may
be destroyed by Landlord without compensation to Tenant.
9. PERSONAL PROPERTY TAXES. Tenant shall pay before delinquency all taxes,
assessments, license fees and public charges levied, assessed or imposed
upon its business operations as well as upon all trade fixtures, leasehold
improvements, merchandise and other personal property in or about the
Premises.
10. PARKING. Landlord grants to Tenant and Tenant's customers, suppliers,
employees and invitees, a non-exclusive license to use the designated
parking areas in the Project for the use of motor vehicles during the term
of this Lease. Landlord reserves the right at any time to grant similar
non-exclusive use to other tenants, to promulgate rules and regulations
relating to the use of such parking areas, including reasonable
restrictions on parking by tenants and employees, to designate specific
spaces for the use of any tenant, to make changes in the parking layout
from time to time, and to establish reasonable time limits on parking.
Overnight parking is prohibited and any vehicle violating this or any other
vehicle regulation adopted by Landlord is subject to removal at the owner's
expense.
11. UTILITIES. (Strike and initial clause which does not apply).
[a. Office Space. Landlord shall provide, in the area shown on Exhibit A
hereto as office space, all heat, electricity, air conditioning and
gas, if any, during the hours of 8:00 am. to 6:00 p.m., Monday through
Friday, except legal holidays, and water for restroom facilities, if
any. If Tenant uses water, electricity, heat or air conditioning in
excess of normal office use, Landlord may separately meter the
increased use and Tenant shall pay the increased cost directly to the
appropriate utility; or Landlord may, in its sole judgment, measure or
estimate the increased use and Tenant shall pay Landlord, on demand,
any increased costs so measured or estimated. In any event, Tenant
shall pay all telephone, waste removal and any other services for
which Tenant shall contract.]
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LANDLORD
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TENANT
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b. Industrial Space. Tenant shall pay for all [water, gas,] heat, light,
power, [sewer,] electricity, telephone or other service metered,
chargeable or provided to the Premises. Landlord reserves the right to
install separate meters for any such utility and to charge Tenant for
the cost of such installation.
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LANDLORD
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TENANT
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12. MAINTENANCE. Landlord shall maintain, in good condition, the structural
parts of the Premises, which shall include only the foundations, bearing
and exterior walls (excluding glass), subflooring and roof (excluding
skylights), the unexposed electrical, plumbing and sewerage systems,
including without limitation, those portions of the systems lying outside
the Premises, exterior doors (excluding glass), window frames, gutters and
downspouts on the Building and the heating, ventilating and air
conditioning system servicing the Premises; provided, however, the cost of
all such maintenance shall be considered 'Expenses" for purposes of Section
4.c. Except as provided above, Tenant shall maintain and repair the
Premises in good condition, including, without limitation, maintaining and
repairing all walls, floors, ceilings, interior doors, exterior and
interior windows and fixtures as well as damage caused by Tenant, its
agents, employees or invitees. Upon expiration or termination of this
Lease, ▇▇▇▇▇▇ shall surrender the Premises to Landlord in the same
condition as existed at the commencement of the term, except for reasonable
wear and tear or damage caused by fire or other casualty for which ▇▇▇▇▇▇▇▇
has received all funds necessary for restoration of the Premises from
insurance proceeds.
13. ALTERATIONS. Tenant shall not make any alterations to the Premises, or to
the Project, including any changes to the existing landscaping, without
Landlord's prior written consent. If Landlord gives its consent to such
alterations, Landlord may post notices in accordance with the laws of the
state in which the premises are located. Any alterations made shall remain
on and be surrendered with the Premises upon expiration or termination of
this Lease, except that Landlord may, within 30 days before or 30 days
after expiration of the term, elect to require Tenant to remove any
alterations which Tenant may have made to the Premises. If Landlord so
elects, at its own cost Tenant shall restore the Premises to the condition
designated by Landlord in its election, before the last day of the term or
within 30 days after notice of its election is given, whichever is later.
Should Landlord consent in writing to Tenant's alteration of the Premises,
Tenant shall contract with a contractor approved by Landlord for the
construction of such alterations, shall secure all appropriate governmental
approvals and permits, and shall complete such alterations with due
diligence in compliance with plans and specifications approved by Landlord.
All such construction shall be performed in a manner which will not
interfere with the quiet enjoyment of other tenants of the Project. Tenant
shall pay all costs for such construction and shall keep the Premises and
the Project free and clear of all mechanics' liens which may result from
construction by Tenant. If Landlord gives its consent, no such alterations
will proceed without Landlord's prior written approval of ▇▇▇▇▇▇'s
contractor, which shall be conditioned on proof of insurance by ▇▇▇▇▇▇'s
contractor for public liability and automobile liability and property
damage insurance with limits not less than $1,000,000/$250,000/$500,000
respectively endorsed to show Landlord as an additional insured and for
worker's compensation as required and detailed plans and specifications for
such work.
Tenant will keep the Premises and Property free from any liens arising out
of any work performed, materials furnished or obligations incurred by
Tenant, its agents or contractors. ▇▇▇▇▇▇ agrees that should any lien be
posted on the property due to work performed, materials furnished, or
obligations incurred by it, that it will immediately notify and proceed to
remove such lien. Tenant further acknowledges that it will remain liable to
Landlord and indemnify it for any costs or damages to Landlord or the
property as a result of such liens. Landlord has the right to post and keep
posted in the Premises and/or Property, any notices that may be provided by
law or which Landlord may deem to be proper for the protection of Landlord,
the Premises and/or Property from such liens.
14. RELEASE AND INDEMNITY. As material consideration to Landlord, ▇▇▇▇▇▇ agrees
that Landlord shall not be liable to Tenant for any damage to Tenant or
Tenant's property from any cause, and Tenant waives all claims against
Landlord for damage to persons or property arising for any reason, except
for damage resulting directly from ▇▇▇▇▇▇▇▇'s breach of its express
obligations under this Lease which Landlord has not cured within a
reasonable time after receipt of written notice of such breach from Tenant.
Tenant shall indemnify and hold Landlord harmless from all damages arising
out of any damage to any person or property occurring in, on or about the
Premises or Tenant's use of the Premises or Tenant's breach of any term of
this Lease.
15. INSURANCE. Tenant, at its cost, shall maintain public liability and
property damage insurance and products liability insurance with a single
combined liability limit of $1,000,000, insuring against all liability of
Tenant and its authorized representatives arising out of or in connection
with ▇▇▇▇▇▇'s use or occupancy of the Premises. Public liability insurance,
products liability insurance and property damage insurance shall insure
performance by Tenant of the indemnity provisions of Section 14. Landlord
shall be named as additional insured and the policy shall contain
cross-liability endorsements. On all its personal property, at its cost,
Tenant shall maintain a policy of standard fire and extended coverage
insurance with vandalism and malicious mischief endorsements and all risk"
coverage on all Tenant's improvements and alterations in or about the
Premises, to the extent of at least 90% of their full replacement value.
The proceeds from any such policy shall be used by Tenant for the
replacement of personal property and the restoration of Tenant's
improvements or alterations. This policy will contain an express waiver, in
favor of Landlord, of any right of subrogation by the insurer. All
insurance required to be provided by Tenant under this Lease shall release
Landlord from any claims for damage to any person or the Premises and the
Project, and to Tenant's fixtures, personal property, improvements and
alterations in or on the Premises or the Project, caused by or resulting
from risks insured against under any insurance policy carried by Tenant and
in force at the time of such damage. All insurance required to be provided
by Tenant under this Lease: (a) shall be issued by Insurance companies
authorized to do business in the state in which the premises are located
with a financial rating of at least an A XII status as rated in the most
recent edition of Best's Insurance Reports; (b) shall be issued as a
primary policy; and (c) shall contain an endorsement requiring at least 30
days prior written notice of cancellation to Landlord and Landlord's
lender, before cancellation or change in coverage, scope or amount of any
policy. Tenant shall deliver a certificate or copy of such policy together
with evidence of payment of all current premiums to Landlord within 30 days
of execution of this Lease. Tenant's failure to provide evidence of such
coverage to Landlord may, in Landlord's sole discretion, constitute a
default under this Lease.
5
16. DESTRUCTION. If during the term, the Premises or Project are more than 10%
destroyed from any cause, or rendered inaccessible or unusable from any
cause, Landlord may, in its sole discretion, terminate this Lease by
delivery of notice to Tenant within 30 days of such event without
compensation to Tenant. If in Landlord's estimation, the Premises cannot be
restored within 90 days following such destruction, the Landlord shall
immediately notify Tenant and Tenant may terminate this Lease by delivery
of notice to Landlord within 30 days of receipt of Landlord's notice. If
Landlord does not terminate this lease and if in Landlord's estimation the
Premises can be restored within 90 days, then Landlord shall commence to
restore the Premises in compliance with then existing laws and shall
complete such restoration with due diligence. In such event, this Lease
shall remain in full force and effect, but there shall be an abatement of
rent between the date of destruction and the date of completion of
restoration, based on the extent to which destruction interferes with
▇▇▇▇▇▇'s use of the Premises.
17. CONDEMNATION.
a. Obligations to be Governed by ▇▇▇▇▇. If during the-term of the Lease
there is any taking of all or any part of the Premises or the Project,
the rights and obligations of the parties shall be determined pursuant
to this Lease.
b. Total or Partial Taking. If the Premises are totally taken by
condemnation, this Lease shall terminate on the date of taking. If any
portion of the Premises is taken by condemnation, this Lease shall
remain in effect, except that Tenant can elect to terminate this Lease
if the remaining portion of the Premises is rendered unsuitable for
Tenant's continued use of the Premises. If Tenant elects to terminate
this Lease, Tenant must exercise its right to terminate by giving
notice to Landlord within 30 days after the nature and extent of the
taking have been finally determined. If Tenant elects to terminate
this Lease, Tenant shall also notify Landlord of the date of
termination, which date shall not be earlier than 30 days nor later
than 90 days after Tenant has notified Landlord of its election to
terminate; except that this Lease shall terminate on the date of
taking if the date of taking falls on a date before the date of
termination as designated by Tenant. If any portion of the Premises is
taken by condemnation and this Lease remains in full force and effect,
on the date of taking the rent shall be reduced by an amount in the
same ratio as the total number of square feet in the Premises taken
bears to the total number of square feet in the Premises immediately
before the date of taking. Tenant will not because of such taking
assert any claim against the Landlord or the taking authority for any
compensation because of such taking, and Landlord will be entitled to
receive the entire amount of any compensation or award without
deduction for any estate of interest of Tenant, unless Landlord would
not be entitled to such award and such award or part thereof does not
diminish Landlord's award.
18. ASSIGNMENT OR SUBLEASE. Tenant shall not assign or encumber its interest in
this Lease or the Premises or sublease all or any part of the Premises or
allow any other person or entity (except Tenant's authorized
representatives, employees, invitees, or guests) to occupy or use all or
any part of the Premises without first obtaining Landlord's consent which
Landlord may withhold in its sole discretion. Any assignment, encumbrance
or sublease without Landlord's written consent shall be voidable and at
Landlord's election, shall constitute a default. If Tenant is a
partnership, a withdrawal or change, voluntary, involuntary or by operation
of law of any partner; or the dissolution of the partnership, shall be
deemed a voluntary assignment. If Tenant consists of more than one person,
a purported assignment, voluntary or involuntary or by operation of law
from one person to the other shall be deemed a voluntary assignment. If
Tenant is a corporation, any dissolution, merger; consolidation or other
reorganization of Tenant, or sale or other transfer of a controlling
percentage of the capital stock of Tenant, or the sale of at least 25% of
the value of the assets of Tenant shall be deemed a voluntary assignment.
The phrase "controlling percentage" means ownership of and right to vote
stock possessing at least 25% of the total combined voting power of all
classes of Tenant's capital stock issued, outstanding and entitled to vote
for election of directors. This Section 18 shall not apply to corporations
the stock of which is traded through an exchange or over the counter. All
rent received by Tenant from its subtenants in excess of the rent payable
by Tenant to Landlord under this Lease shall be paid to Landlord, or any
sums to be paid by an assignee to Tenant in consideration of the assignment
of this Lease shall be paid to Landlord. If Tenant requests ▇▇▇▇▇▇▇▇ to
consent to a proposed assignment or subletting, Tenant shall pay to
Landlord. whether or not consent is ultimately given, $100 or Landlord's
reasonable attorneys' fees incurred in connection with such request.
whichever is greater.
No interest of Tenant in this Lease shall be assignable by involuntary
assignment through operation of law (including without limitation the
transfer of this Lease by testacy or intestacy). Each of the following acts
shall be considered an involuntary assignment: (a) If Tenant is or becomes
bankrupt or insolvent, makes an assignment for the benefit of creditors, or
institutes proceedings under the Bankruptcy Act in which Tenant is the
bankrupt; or if Tenant is a partnership or consists of more than one person
or entity, if any partner of the partnership or other person or entity is
or becomes bankrupt or insolvent, or makes an assignment for the benefit of
creditors; or (b) If a writ of attachment or execution is levied on this
Lease; or (c) If in any proceeding or action to which Tenant is a party, a
receiver is appointed with authority to take possession of the Premises. An
involuntary assignment shall constitute a default by Tenant and Landlord
shall have the right to elect to terminate this Lease, in which case this
Lease shall not be treated as an asset of Tenant.
19. DEFAULT. The occurrence of any of the following shall constitute a default
by Tenant. (a) A failure to pay rent or other charge when due and such
default continues for a period of 5 (five) days after such default occurs;
(b) Abandonment and vacation of the Premises (failure to occupy and operate
the Premises for ten consecutive days shall be deemed an abandonment and
vacation); or (c) Failure to perform any other provision of this Lease and
such default continues for 15 (fifteen) days after such default occurs.
20. LANDLORD'S REMEDIES. Landlord shall have the following remedies if Tenant
is in default. (These remedies are not exclusive; they are cumulative and
in addition to any remedies now or later allowed by law): Landlord may
terminate Tenant's right to possession of the Premises at any time. Tenant
hereby grants Landlord full and free right, whether by changing or picking
of locks if necessary, to enter and repossess the Premises, with or without
process of law. Tenant releases Landlord of any liability for any damage
resulting therefrom and waives any right to claim damage for such re-entry.
▇▇▇▇▇▇ also agrees that ▇▇▇▇▇▇▇▇ has not waived or relinquished any other
right given to it hereunder or by operation of law. No act by Landlord
other than giving notice to Tenant shall terminate this Lease. Acts of
maintenance, efforts to relet the Premises, or the appointment of a
receiver on Landlord's initiative to protect ▇▇▇▇▇▇▇▇'s interest under this
Lease shall not constitute a termination of Tenant's right to possession.
Upon termination of ▇▇▇▇▇▇'s right to possession, Landlord has the right to
recover from Tenant: (1) The worth of the unpaid rent that had been earned
at the time of
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termination of ▇▇▇▇▇▇'s right to possession; (2) The worth of the amount of
the unpaid rent that would have been earned after the date of termination
of Tenant's right to possession; (3) Any other amount, including court,
attorney and collection costs, necessary to compensate Landlord for all
detriment proximately caused by ▇▇▇▇▇▇'s default. "The Worth," as used for
Item 20(1) in this Paragraph 20 is to be computed by allowing interest at
the maximum rate an individual is permitted to charge by law or 12%,
whichever is greater. "The worth at the time of the award" as used for Item
20(2) in this Paragraph 20 is to be computed by discounting the amount at
the discount rate of the Federal Reserve Bank of San Francisco at the time
of termination of Tenant's right of possession.
21. ENTRY ON PREMISES. Landlord and its authorized representatives shall have
the right to enter the Premises at all reasonable times for any of the
following purposes: (a) To determine whether the Premises are in good
condition and whether Tenant is complying with its obligations under this
Lease; (b) To do any necessary maintenance and to make any restoration to
the Premises or the Project that Landlord has the right or obligation to
perform; (c) To post "for sale" signs at any time during the term, to post
"for rent" or "for lease" signs during the last 90 days of the term, or
during any period while Tenant is in default; (d) To show the Premises to
prospective brokers, agents, buyers, tenants or persons interested in
leasing or purchasing the Premises, at any time during the term; or (e) To
repair, maintain or improve the Project and to erect scaffolding and
protective barricades around and about the Premises but not so as to
prevent entry to the Premises and to do any other act or thing necessary
for the safety or preservation of the Premises or the Project. Landlord
shall not be liable in any manner for any inconvenience, disturbance, loss
of business, nuisance or other damage arising out of Landlord's entry onto
the Premises as provided in this Section 21. Tenant shall not be entitled
to an abatement or reduction of rent if Landlord exercises any rights
reserved in this Section 21. Landlord shall conduct his activities on the
Premises as provided herein in a manner that will cause the least
inconvenience, annoyance or disturbance to Tenant. For each of these
purposes, Landlord shall at all times have and retain a key with which to
unlock all the doors in, upon and about the Premises, excluding ▇▇▇▇▇▇'s
vaults and safes. Tenant shall not alter any lock or install a new or
additional lock or bolt on any door of the Premises without prior written
consent of Landlord. If Landlord gives its consent, Tenant shall furnish
Landlord with a key for any such lock.
22. SUBORDINATION. Once Tenant has received written notice identifying the name
and address of any lender (a "Lender") holding a mortgage or deed of trust
(a "Mortgage") on the property of which these premises form a part ( the
"Property"), ▇▇▇▇▇▇ agrees to notify such Lender by certified mail, return
receipt requested, with postage prepaid, of any default on the part of
Landlord under this Lease, and ▇▇▇▇▇▇ further agrees that, notwithstanding
any provisions of this Lease no cancellation or termination of this Lease
and no abatement or reduction of the rent payable hereunder shall be
effective unless the Lender has received notice of the same and has failed
within thirty (30) days after the time when it shall have become entitled
under the Mortgage to remedy the same, to commence cure such default and
thereafter diligently prosecute such cure to completion, provided that such
period may be extended, if the Lender needs to obtain possession of the
Property to cure such default, to allow the Lender to obtain possession of
the Property provided the Lender commences judicial or non-judicial
proceedings to obtain possession within such period and thereafter
diligently prosecutes such efforts and cure to completion. It is understood
that the Lender shall have the right, but not the obligation, to cure any
default on the part of the Landlord.
Tenant agrees that if a lender shall succeed to the interest of Landlord
under this Lease, neither the Lender nor its successors or assigns shall
be: liable for any prior act or omission of Landlord; subject to any
claims, offsets, credits or defenses which Tenant might have against any
prior landlord (including Landlord); or bound by any assignment (except as
otherwise expressly permitted hereunder); surrender, release, waiver,
amendment or modification of the Lease made without such ▇▇▇▇▇▇'s prior
written consent; or obligated to make any payment to Tenant or liable for
refund of all or any part of any security deposit or other prepaid charge
to Tenant held by Landlord for any purpose unless the Lender shall have
come into exclusive possession of such deposit or charge. In addition, if a
Lender shall succeed to the interest of Landlord under this Lease, the
Lender shall have no obligation, nor incur any liability, beyond its then
equity interest, if any, in the Property.
In the event that a Lender (or any person or entity to whom the Mortgage
may subsequently be assigned) notifies Tenant of a default under the
Mortgage and demands that Tenant pay its rent and all other sums due under
this Lease to the Lender, Tenant shall honor such demand without inquiry
and pay its rent and all other sums due under this Lease directly to the
Lender or as otherwise required pursuant to such notice and shall not
thereby incur any obligation or liability to Landlord.
▇▇▇▇▇▇ agrees and acknowledges that this Lease is subordinate to the lien
of any Mortgage, and in the event a Lender succeeds to the interest of
Landlord under this Lease, then, at the Lender's election (A) Tenant shall
be bound to the Lender under all of the terms, covenants and conditions of
this Lease for the remaining balance of term hereof, with the same force
and effect as it the Lender were the lessor hereunder, and ▇▇▇▇▇▇ does
hereby agree to attorn to the Lender as its lessor without requiring the
execution of any further instruments immediately upon the Lender succeeding
to the interest of Landlord under this Lease; provided, however, that
▇▇▇▇▇▇ agrees to execute and deliver to the Lender any instrument
reasonably requested by it to evidence such attornment; and (B) subject to
the observance and performance by Tenant of all the terms, covenants and
conditions of this Lease on the part of Tenant to be observed and
performed, the Lender shall recognize the leasehold estate of Tenant under
all of the terms and conditions of this Lease for the remaining balance of
the term with the same force and effect as if the Lender were the lessor
under the Lease.
Tenant agrees, at any time and from time to time, as requested by Landlord
or any Lender, upon not less than ten (10) days prior notice, to execute
and deliver without cost or expense to the Landlord or such Lender an
estoppel certificate certifying that this Lease is unmodified and in full
force and effect (or if there have been modifications, that the same is in
full force and effect as modified and stating the modifications),
certifying the dates to which all fixed or base rent and any additional
rent have been paid, and stating whether or not, to the best knowledge of
this Lease, and, if so, specifying each such default of which Tenant may
have knowledge, it being intended that any such statement delivered
pursuant thereto may be relied upon any other person with whom Landlord or
such Lender may be dealing.
23. NOTICE. Any notice, demand, request, consent, approval or communication
desired by either party or required to be given, shall be in writing and
served either personally or sent by prepaid certified first class mail,
addressed as set forth in Section 1. Either party may change its address by
notification to the other party. Notice shall be deemed to be communicated
48 hours from the time of mailing, or from the time of service as provided
in this Section 23.
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24. WAIVER. No delay or omission in the exercise of any right or remedy by
Landlord shall impair such right or remedy or be construed as a waiver. No
act or conduct of Landlord, including without limitation, acceptance of the
keys to the Premises, shall constitute an acceptance of the surrender of
the Premises by Tenant before the expiration of the term. Only written
notice from Landlord to Tenant shall constitute acceptance of the surrender
of the Premises and accomplish termination of the Lease. ▇▇▇▇▇▇▇▇'s consent
to or approval of any act by Tenant requiring Landlord's consent or
approval shall not be deemed to waive or render unnecessary Landlord's
consent to or approval of any subsequent act by ▇▇▇▇▇▇. Any waiver by
Landlord of any default must be in writing and shall not be a waiver of any
other default concerning the same or any other provision of the Lease.
25. SURRENDER OF PREMISES; HOLDING OVER. Upon expiration of the term, ▇▇▇▇▇▇
shall surrender to Landlord the Premises and all Tenant improvements and
alterations in good condition, except for ordinary wear and tear and
alterations Tenant has the right or is obligated to remove under the
provisions of Section 13 herein. Tenant shall remove all personal property
including, without limitation, all wallpaper; paneling and other decorative
improvements or fixtures and shall perform all restoration made necessary
by the removal of any alterations or Tenant's personal property before the
expiration of the term, including for example, restoring all wall surfaces
to their condition prior to the commencement of this Lease. Landlord can
elect to retain or dispose of in any manner ▇▇▇▇▇▇'s personal property not
removed from the Premises by Tenant prior to the expiration of the term.
Tenant waives all claims against Landlord for any damage to Tenant
resulting from ▇▇▇▇▇▇▇▇'s retention or disposition of ▇▇▇▇▇▇'s personal
property. Tenant shall be liable to Landlord for Landlord's costs for
storage, removal or disposal of Tenant's personal property.
If ▇▇▇▇▇▇, with ▇▇▇▇▇▇▇▇'s consent, remains in possession of the Premises
after expiration or termination of the term, or after the date in any
notice given by Landlord to Tenant terminating this Lease, such possession
by Tenant shall be deemed to be a month-to-month tenancy terminable on
written 30-day notice at any time, by either party. All provisions of this
Lease, except those pertaining to term and rent, shall apply to the
month-to-month tenancy. Tenant shall pay monthly rent in an amount equal to
150% of Rent for the last full calendar month during the regular term plus
100% of said last month's estimate of ▇▇▇▇▇▇'s share of Expenses pursuant
to Section 4.c3.
26. LANDLORD'S LIEN/STORAGE. As security for payment of rent, damages and all
other payments required to be made by this Lease, Tenant hereby grants to
Landlord a lien upon all property of Tenant now or subsequently located
upon the leased Premises. If Tenant abandons or vacates any substantial
portion of the Lease Premises or is in default in the payment of any rent
or additional rent, damages or other payments required to be made by this
Lease or is in default of any other provision of this Lease, Landlord may
enter upon the leased premises, whether by changing or picking locks, and
take possession pursuant to this Lease 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 to the highest bidder all of
Tenant's title and interest in the personal property sold to him.
Any and all property which may be removed from the Premises by Landlord
pursuant to the authority of this 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
▇▇▇▇▇▇▇▇'s control. Any such property of Tenant not retaken by Tenant from
storage within 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
bill of sale without further payment or credit by Landlord to Tenant.
27. RULES AND REGULATIONS. Tenant will faithfully observe and comply with the
Rules and Regulations printed on or attached to this Lease and Landlord
reserves the right to modify and amend them as it deems necessary. ▇▇▇▇▇▇▇▇
will not be responsible to Tenant for the nonperformance by any other
lessee or occupant of the Project of any of said Rules and Regulations.
Violation of any such Rules and Regulations shall be deemed a material
breach of this Lease by ▇▇▇▇▇▇.
28. PROJECT PLAN. In the event Landlord requires the Premises for use in
conjunction with another suite or for other reasons connected with the
Project planning program, Landlord, upon notifying Tenant in writing, shall
have the right to move Tenant to space in the Project of which the Premises
forms a part, at Landlord's sole cost and expense (excluding private
telephone systems which Tenant must bear the cost of moving and
installing), and the terms and conditions of the original Lease will remain
in full force and effect excepting that the Premises will now be in a new
location. However, if the new space does not meet with ▇▇▇▇▇▇'s approval,
▇▇▇▇▇▇ will have the right to cancel this Lease upon giving Landlord thirty
(30) days' notice within ten (10) days of receipt of Landlord's
notification. Should Tenant elect to cancel the Lease as provided in this
paragraph, the effective expiration date will equal the projected move-in
date of the suite Landlord wishes Tenant to move to as indicated in
▇▇▇▇▇▇▇▇'s written notification to Tenant.
29. FORCE MAJEURE. Landlord will have no liability to Tenant, nor will Tenant
have any right to terminate this Lease or ▇▇▇▇▇ Monthly Rent or Additional
Rent or assert a claim of partial or total actual or constructive eviction,
because of Landlord's failure to perform any of its obligations in the
Lease if the failure is due in part or in full to reasons beyond Landlord's
reasonable control, including without limitation, strikes, or other labor
difficulties, inability to obtain necessary governmental permits and
approvals, war, riot, mandatory or prohibitive injunction issued in
connection with the, civil insurrection, accidents, acts of God, and
governmental preemption in connection with a national emergency
(collectively referred to as "Force Majeure"). If Landlord fails to perform
its obligations because of any reasons beyond Landlord's reasonable control
(including those enumerated above), the period for Tenant's performance
will be extended day for day for the duration of the cause of Landlord's
failure, except for ▇▇▇▇▇▇'s obligation to pay Rent as required under the
Lease.
30. SECURITY MEASURES. Tenant hereby acknowledges that the rental payable to
Landlord hereunder does not include the cost of guard service or other
security measures, and that Landlord shall have no obligation whatsoever to
provide same. Tenant assumes all responsibility for the protection of the
Premises, Project and Property and all real and all personal property that
it, its agents, and/or its invitees may use, from the acts of third
parties.
8
31. PERFORMANCE UNDER PROTEST. If at any time a dispute shall arise as to any
amount or sum of money to be paid by one party to the other under the
provisions hereof, the party against whom the obligation to pay the money
is asserted shall have the right to make payment "under protest" and such
payment shall not be regarded as a voluntary payment and shall survive the
right on the part of said party to initiate suit or other action for
recovery of such sum. If it shall be adjudged that there was no legal
obligation on the part of said party to pay such sum or any part thereof,
said party shall be entitled to recover such sum or so much thereof as it
was not legally required to pay under the provisions of this Lease.
32. LIMITATION OF LIABILITY. In consideration of the benefits accruing
hereunder, ▇▇▇▇▇▇ agrees that, in the event of any actual or alleged
failure, breach or default of this Lease by Landlord, if Landlord is a
partnership:
a. The sole and exclusive remedy shall be against the partnership and its
partnership assets;
b. No partner of Landlord shall be sued or named as a party in any suit
or action (except as may be necessary to secure jurisdiction of the
partnership);
c. No service of process shall be made against any partner of Landlord
(except as may be necessary to secure jurisdiction of the
partnership);
d. No partner of Landlord shall be required to answer or otherwise plead
to any service or process;
e. No judgment may be taken against any partner of Landlord;
f. Any judgment taken against any partner of Landlord may be vacated and
set aside at any time without hearing;
g. No writ of execution will ever be levied against the assets of any
partner of Landlord;
h. These covenants and agreements are enforceable both by Landlord and
also by any partner of Landlord.
Tenant agrees that each of the foregoing provisions shall be
applicable to any covenant or agreement either expressly contained in
this Lease or imposed by statute or at common law.
33. MISCELLANEOUS PROVISIONS.
a. Time of Essence. Time is of the essence of each provision of this
Lease.
b. Successor. This Lease shall be binding on and inure to the benefit of
the parties and their successors, except as provided in Section 18
herein.
c. Landlord's Consent. Any consent required by Landlord under this Lease
must be granted in writing and may be withheld by Landlord in its sole
and absolute discretion.
d. Commissions. Each party represents that it has not had dealings with
any real estate broker, finder or other person with respect to this
Lease in any manner, except for the broker identified in Section 1,
who shall be compensated by Landlord.
e. Other Charges. If Landlord becomes a party to any litigation
concerning this Lease, the Premises or the Project, by reason of any
act or omission of Tenant or Tenant's authorized representatives,
Tenant shall be liable to Landlord for reasonable attorneys' fees and
court costs incurred by Landlord in the litigation whether or not such
litigation leads to actual court action. Should the court render a
decision which is thereafter appealed by any party thereto, Tenant
shall be liable to Landlord for reasonable attorneys' fees and court
costs incurred by Landlord in connection with such appeal.
If either party commences any litigation against the other party or
files an appeal of a decision arising out of or in connection with
this Lease, the prevailing party shall be entitled to recover from the
other party reasonable attorneys' fees and costs of suit. If Landlord
employs a collection agency to recover delinquent charges, ▇▇▇▇▇▇
agrees to pay all collection agency and attorneys' fees charged to
Landlord in addition to rent, late charges, interest and other sums
payable under this Lease. Tenant shall pay a charge of $75 to Landlord
for preparation of a demand for delinquent rent.
f. Authority. If either party hereto is a corporation, trust, or general
or limited partnership, each individual executing this Lease on behalf
of such entity represents and warrants that he or she is duly
authorized to execute and deliver this Lease on its behalf. If Tenant
is a corporation, trust or partnership, Tenant shall, within thirty
(30) days after request by ▇▇▇▇▇▇▇▇, deliver to Landlord evidence
satisfactory to Landlord of such authority.
g. Offer. Any preparation of this document by Landlord or Landlord's
agent and submission of same to Tenant shall not be deemed to be a
proposal, offer or contract to lease to Tenant. This document cannot
be unilaterally accepted by Tenant and thereby made binding upon
Landlord. This document is not binding on any party and has no force
or effect until executed by all parties hereto.
h. ▇▇▇▇▇▇▇▇'s Successors. In the event of a sale or conveyance by
Landlord of the Project, the same shall operate to release Landlord
from any liability under this Lease, and in such event Landlord's
successor in interest shall be solely responsible for all obligations
of Landlord under this lease.
i. Interpretation. This Lease shall be construed and interpreted in
accordance with the laws of the state in which the premises are
located. This Lease constitutes the entire agreement between the
parties with respect to the Premises and the Project, except for such
guarantees or modifications as may be executed in writing by the
parties from time to time. When required by the context of this Lease,
the singular shall include the plural, and the masculine shall include
the feminine and/or neuter. "Party" shall mean Landlord or Tenant. If
more than one person or entity constitutes Landlord or Tenant, the
obligations imposed upon that party shall be joint and several. The
enforceability, invalidity, or illegality of any provision shall not
render the other provisions unenforceable, invalid or illegal.
9
Landlord: EAGLE-DFW CORPORATE PARK, ▇.▇ ▇▇▇▇▇▇: ▇▇▇▇▇ BROS. ELECTRONICS,
INC., a New Jersey Corporation
BY: Eagle-DFW, Inc., it's General
Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------ -----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Title: President Title: CFO
Date: 6/27/00 Date: 6/22/00
---------------------------- -----------------------------------
10
34. RELOCATION CONTINGENCY
The attached Lease Agreement shall be contingent upon the agreement of the
existing occupant at ▇▇▇▇ ▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Clima Air Conditioning Systems, Inc. to relocate to comparable space within
the Property. In the event Clima Air Conditioning Systems, Inc. is not
willing to relocate, this Lease Agreement shall be null and void and Tenant
shall revert back to the terms and conditions of their original Lease
Agreement dated January 29th, 1998.
THE REST OF THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY.
EXHIBIT "A"
Suites 2100A/2100B, 2101, & 2102
Approx. 4200 rsf
[FLOOR PLAN]
------------------------
LANDLORD
EXHIBIT "B"
DFW CORPORATE PARK
▇▇▇▇ ▇. ▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
The description of Tract 1, a 16,181 acre tract of land out of the unplatted
G.S.C. Development Corporation Properties in the City of Grand Prairie, Tarrant
County, Texas, being situated in the ▇. ▇▇▇▇▇ Survey, Abstract No. 110 and the
▇. ▇▇▇▇▇▇▇ Survey, Abstract No. 589, and being more particularly described as
follows:
COMMENCING at the north line of Carrier Parkway (100 foot R.O.W.) and the west
line of Lead Tract No. 1 (50 foot R.O.W.);
THENCE West along the north line of said Carrier Parkway for a distance of
500.00 feet to a 1/2 inch iron rod, being the POINT OF BEGINNING; said point
also being the southwest corner of an 11.40 acre tract of land as recorded in
Volume 6277, Page 364, Deed Records of Tarrant County, Texas.
THENCE continuing West along the north line of said Carrier Parkway for a
distance of 707.95 feet to a 1 inch iron rod for corner;
THENCE North 33 degrees, 14 feet 00 minutes West for a distance of 126.46 feet
to a 3/4 inch iron rod for corner, said point being the east line of State
Highway 360 (R.O.W.);
THENCE North 10 degrees, 57 feet 00 minutes East along the east line of said
State Highway 360 for a distance of 747.96 feet to a 3/4 inch iron rod;
THENCE North 12 degrees, 23 feet 00 minutes East a distance of 95.45 feet to a
3/4 inch iron rod;
THENCE North 13 degrees, 50 feet 33 minutes East continuing along the cast line
of said State Highway 360 for a distance of 76.71 feet to a 1/2 inch iron rod
for corner;
THENCE East for a distance of 607.03 feet to a 1/2 inch iron rod for corner;
said point also being the northwest corner of said 11.48 acre tract;
THENCE South along the west line of said 11.48 acre tract for a distance of
1000.00 feet to the POINT OF BEGINNING.
CONTAINING 704,860.47 square feet of 16.181 acres of land.
[MAP]
EXHIBIT "C"
SIGN CRITERIA
1. Sign Criteria
This criteria establishes the uniform policies for all Tenant sign
identification within Corporate Park. This criteria has been established
for the purpose of maintaining the overall appearance of the park.
Conformance will be strictly enforced. Any sign installed that does not
conform to the criteria will be brought into conformity at the expense of
the Tenant.
A. General Requirements
1. A drawing of the size and shape of the approved signage is shown
below. Lettering and installation shall be paid for by the
Tenant.
2. Landlord shall approve all copy and/or logo design prior to the
installation of the sign.
3. Landlord shall direct the placement of all Tenant signs and the
method of attachment to the building.
4. Tenant shall be responsible for the fulfillment of all
requirements for this criteria.
B. General Specifications
1. The sign's dimensions shall be 18' high by 60' long.
2. Tenant shall be allowed one sign of the nature described in B-1
for each Pull module leased.
3. All sign lettering shall be no larger than 3 1/2" and will be
white in color (No other color shall be allowed without
Landlord's consent.) Use of the Tenant's individual company logo
or insignia on any sign visible to public view shall be at the
sole discretion of the Landlord and authorization must be
obtained in writing.
4. No electrical or audible signs will be allowed.
5. Upon removal of any sign, any damage to the building will be
repaired by ▇▇▇▇▇▇.
6. Except as provided herein, no advertising placards, banners,
pennants, names, insignias, trademarks, or other descriptive
material shall be affixed or maintained upon any automated
machine, glass panes of the building landscaped areas, streets or
parking areas.
[SIGN DIAGRAM]
*Signage to remain after Tenant moveout.
$125.00 (non-logo)
Lessee shall pay the sum of ------------------ in total payment for sign
identification. $200.00 (logo)
EXHIBIT "D"
DFW CORPORATE PARK
RULES AND REGULATIONS
1) SIGNS/WINDOWS. All Tenant identification signs shall be provided at the
expense of Tenant. No sign, placard, picture, advertisement, name or notice
shall be attached to any part of the outside of any building and if so
placed, Landlord shall have the right to remove any such sign, placard,
picture, advertisement, name or notice at Tenant's expense. Tenant shall
not place nor allow anything to be placed near the glass of any window,
door, partition or wall which may appear unsightly from outside the leased
premises, nor conflict with the above. Landlord will provide a standard
drape, blind or window covering that shall not be altered or removed by
Tenant. Tenant is responsible to keep windows washed, inside and/or out. No
awning or shade shall be affixed or installed over or in the windows or the
exterior of the premises.
2) COMMON AREA/ROOF: The sidewalks, entrances and exits, hall passages and
stairways, in any, shall not be obstructed or used by Tenant for any
purpose other than for ingress and egress. The hall passages, exits,
entrances, stairways and roofs are not for the use of the general public
and Landlord shall in all cases retain the right to control and prevent
access, thereto, by all persons whose presence, in the judgement of the
Landlord, shall be prejudicial to the safety, character, reputation and
interests of the premises and tenant, provided that nothing herein
contained shall be constructed to prevent such access to persons with whom
Tenant normally deals in the ordinary course of Tenant's business unless
such persons are engaged in illegal activities. Neither Tenant nor
employees or invitees of Tenant shall go upon the roof of any building.
3) ADVERTISING: Tenant shall not use the name of the building in connection
with or in promoting or advertising the business of Tenant except as to
Tenant's address. Landlord shall have the right to prohibit the use of the
name of the projects or other publicity by ▇▇▇▇▇▇ which in ▇▇▇▇▇▇▇▇'s
opinion tends to impair the reputation of the project or its desirability
for the other Tenants. Tenants will refrain from or discontinue such
publicity upon notification by ▇▇▇▇▇▇▇▇.
4) LOCKS: No additional locks or bolts shall be placed upon any of the doors
or windows by Tenant, nor shall any changes be made in exiting locks or the
mechanisms thereof. Tenant must upon the termination of ▇▇▇▇▇▇'s tenancy,
return to Landlord all keys either furnished to or otherwise procured by
▇▇▇▇▇▇. In the event of the loss of any keys so furnished, Tenant shall pay
to Landlord the cost thereof.
5) SOLICITATIONS: Tenant shall not disturb, solicit or canvass any occupant of
the project and shall cooperate to prevent the same.
6) USE OF PREMISES: The leased premises shall not be used for lodging,
sleeping or cooking or for any immoral or illegal purpose or for any
purpose that will damage the premises or the reputation thereof or for any
purpose other than that specified in the lease covering the premises.
7) PARKING: The parking areas within the office park complex shall be used
solely for the parking of passenger vehiclcs during normal office hours.
The parking of trucks, trailers, recreational vehicles and campers is
specifically prohibited. No vehicle of any type shall be stored in the
parking areas at any time. In the event that a vehicle is disabled, it
shall be removed within 48 hours. There shall be no "For Sale" or other
advertising signs on or about any parked vehicle. All vehicles shall be
parked in the designated parking areas in conformation with all signs and
other markings. No parking is permitted on public streets adjacent to the
complex.
8) NUISANCES: Tenant shall not use, keep or permit to be used or kept, any
foul or noxious gas or substance in the premises, or permit or suffer, the
premises to be occupied or used in a manner offensive or objectionable to
Landlord or other occupants of the building by reason of noise, odors
and/or vibrations, or interfere in any way with other Tenants or those
having business therein nor shall any animals or birds be brought in or
kept in or about the premises of the project. Tenant shall maintain the
leased premises free from mice, bugs, and ants attracted by food, water or
storage materials. Landlord is responsible for maintaining the outside
areas.
9) DANGEROUS ARTICLES: Tenant shall not use or keep on the premises of the
complex any kerosene, gasoline or inflammable or combustible fluid or
material, or any article deemed extra hazardous on account of fire or other
dangerous properties or use any other method of heating or air conditioning
other than supplied by Landlord.
10) IMPROPER CONDUCT: Landlord reserves the right to exclude or expel from the
complex any person who in the judgment of the Landlord, is intoxicated or
under the influence of liquor or drugs or who shall in any manner do any
act in violation of the Rules and Regulations of the said project.
11) WIRING: No electric wires, or any other electrical apparatus, or additional
electrical outlets shall be installed except with written request to and
written approval from Landlord. Any installation of above wiring shall be
removed by Landlord at Tenant's expense. Landlord reserves the right to
enter upon the leased premises for the purpose if installing additional
electrical wiring and other utilities for the benefit of the Tennant or
adjoining tenant. ▇▇▇▇▇▇▇▇ will direct electricians as to where and how
telephones and telegraph wires are to be introduced. The location of
telephones, call boxes and other equipment affixed to the premies shall be
subject to the approval of Landlord.
12) AUCTION: No auction, public or private, will be permitted.
13) EXTERIOR: Tenant shall not place any improvement or movable objects
including antennae, outside furniture, etc. the parking areas, landscaped
area or other areas outside the teased premises, or on the roof of any
building.
14) SECURITY PRECAUTIONS: All entrance doors in the complex shall be closed and
securely locked when the premises arc not in use and all doors opening to
public corridors'shall be kept closed except for normal ingress and egress.
Tenant must observe strict care and caution that all water faucets or any
other apparatus is shut off before Tenant or Tenant's employees leave the
premises and that all electricity, gas; etc. shall likewise be carefully
shut off so as to prevent waste or damage.
15) KESTROOM FACILITIES: The washrooms and restrooms and appurtenances thereto
shall not be used for any other use than those for which they were
constructed. No sweeping, rubbish, rags or other foreign substances shall
be thrown or placed therein. No person' shall waste water by interfering or
tampering with the faucets. Any damage resulting in soiled washrooms or
restrooms or appurtenances shall be paid for by the Tenant who, or whose
agents, guests, or employees, shall cause such damage.
16) DAMAGE: Walls, floors and ceilings shall not be defaced in any way and no
one shall be permitted to mark, nail, screw, or drill into surfaces, paint
or in any way mar the building surface. Pictures, certificates, licenses
and similar items normally used in Tenant's premises may be carefully
attached to the walls by Tenant in a manner to be prescribed by Landlord.
Upon removal of such items by Tenant, any damage to the walls or other
surfaces shall be repaired by Tenant.
17) FURNITURE, SAFES/MOVING: Furniture, freight, equipment, safes or other
bulky articles shall be moved into or out of the complex only in the
manner and at such times as Landlord may direct. Tenant shall not overload
the floor of the premiscs or in any way deface the premises or any part
thereof. Landlord shall in all cases have the right to determined or limit
the weight, size and position of all safes and other heavy equipment.
Landlord will not be responsible for loss or damage to any safe or other
property of Tenant from any cause. All damage done to the building or
complex by moving or maintaining any such safe or other property shall be
repaired at the expense of Tenant.
18) JANITORIAL SERVICE: Tenant shall not cause any unnecessary labor by reason
of ▇▇▇▇▇▇'s carelessness or indifference in the preservation of good order
and cleanliness. Landlord shall not be responsible to tenant for any loss
of property on the premises, however occurring or for any damage done to
the effect of Tennant by the Janitor, of any other employee, or any other
person.
19) REQUIREMENTS OF TENANT: Employees of Landlord shall not perform any work or
do anything outside of their regular duties unless under special
instruction from Landlord. Tenant shall give Landlord prompt notice of any
defects in the water, sewage, gas pipes, electrical lights and fixtures,
heating apparatus, or any other service equipment.
20) RULES AND REGULATIONS: Rules may be modified, amended or supplemented at
any time by Landlord upon written notice to Tenant.
EXHIBIT "E"
A. AGREEMENT
A.1 Landlord and ▇▇▇▇▇▇ agree to the construction of improvements in the
Premises according to the terms and conditions of the Lease, Exhibit "A", and
this EXHIBIT "E".
A.2 Landlord will provide Tenant with final detailed plans and specifications of
all proposed improvements on or before N/A
A.3 Tenant will return to Landlord a copy of said final detailed plans and
specifications EXHIBIT "A" approved by Tenant on or before N/A
A.4 Any changes, required by Tenant to final plans and specifications previously
approved by both Landlord and Tenant, shall be approved by Landlord at its sole
discretion.
A.5 Landlord will complete all final proposed improvements to the best of its
ability on or before October 1st, 2000.
B. TENANT PAID IMPROVEMENTS
B.1 Tenant at its sole cost and expense will pay for the following improvements:
All improvement costs over and above $3,200.00 TI Allowance.
C. LANDLORD PAID IMPROVEMENTS
C.I Landlord shall do the following improvements only:
Landlord shall fund an improvement allowance not to exceed $3,200.00 to be
used towards connecting Suite 2100B to existing suite, painting, and/or
carpet replacement. Tenant shall pay for all costs over and above
$3,200.00.
Tenant shall not be responsible for relocation costs in connection with
Suite 2100B,
END OF IMPROVEMENTS
