COMMERCIAL
B O A R D OF
REALTORS-C-
COMMERCIAL LEASE AGREEMENT
THIS LEASE, made this 18 day of April 1997, by
and between ABT Building Products Corporation (hereinafter called "Landlord"):
and
En Pointe Technologies (hereinafter called "Tenant"):
WITNESSETH:
PREMISES
1. Landlord for and in consideration of the rents, covenants, agreements,
and stipulations hereinafter mentioned provided for and contained to
be paid, kept and performed by Tenant, leases and rents unto Tenant,
and Tenant hereby leases and takes upon the terms and conditions which
hereinafter appear, the following described property (hereinafter
called the "Premises"), to wit:
(Address:) 0000 Xxxxxxxxxx Xxxxxxxxx Xxxx, Xxxxx 000
-----------------------------------------------------------
(Legal Description:)
--------------------------------------------------
----------------------------------------------------------------------
- See attached Exhibit _____________ for legal description/description
of premises.
TERM
2. The Tenant shall have and hold the Premises for a term of fifteen
months beginning on the 1st day of May 1997 , and ending on the 31st
day of July 1998, at midnight, unless soon terminated as hereinafter
provided. The first Lease Year Anniversary shall be the date twelve
(12) calendar months from the first day of the first full month of the
term hereof and successive Lease Year Anniversaries shall be the date
twelve (12) calendar months from the previous Lease Year Anniversary.
RENTAL
3. Tenant agrees to Pay to Landlord or its Agent without demand,
deduction or set off, and annual rental of $ 36,000 payable in equal
monthly installments of $ 3,000 in advance on the first day of each
calendar month during the term hereof. Upon execution of this Lease,
Tenant shall pay to Landlord the first full month's rent due
hereunder. Rental for any period during the term hereof which is for
less than one month shall be a prorated portion of the monthly rental
due. On each Lease Year Anniversary the annual rental payable
hereunder (and accordingly the monthly installments shall be adjusted
by any change in the Consumer Price Index, Urban Wage Earners and
Clerical Workers, All Cities (CPI-W; 1982-1984 = 100) ("Index") by
multiplying the then effective e annual rental by the value of said
Index for the month two months prior to the previous Lease Year
Anniversary (in the instance of the first Lease Year Anniversary the
value of the Index for the month two months prior to the first full
month of the term hereof) and dividing the product by the value of
said Index for the month two months prior to the Lease Year
Anniversary. In the event the Index ceases to be published, there
shall be substituted for the Index the measure published by the US
Department of Labor which most nearly approximates the index.
- If this box is checked, Tenant shall pay all rental to
Landlord's Agent as designated in Paragraph 34 hereof.
LATE CHARGES
4. If Landlord fails to receive any rent payment within 15 days after it
becomes due, Tenant shall pay Landlord, as additional rental, a late
charge equal to ten percent ( 10 %) of the overdue amount. The
parties agree that such late charge represents a fair and reasonable
estimate of the costs Landlord will incur by reason of such late
payment.
SECURITY DEPOSIT
5. Tenant shall deposit with Landlord or its Agent upon execution of this
Lease $ 3,000 as a security deposit which shall be held as security
for the full and faithful performance by Tenant of each and every
term, covenant and condition of this Lease. If any of the rents or
other charges or sums payable by Tenant shall be over-due and unpaid
or should payments be made on behalf of Tenant, or should Tenant fail
to perform any of the terms of this Lease, then Landlord or its Agent
may, at its option, appropriate and apply the security deposit, or so
much thereof as may be necessary, to compensate toward the payment of
the rents, charges or other sums due from Tenant, or towards any loss,
damage or expense sustained by Landlord resulting from such default on
the part of Tenant; and in such event Tenant shall upon demand restore
the security deposit to the original sum deposited. In the event
Tenant furnishes Landlord with proof that all utility bills have been
paid through the date of Lease termination, and performs all of
Tenant's other obligations under this Lease, the security deposit
shall be returned in full to Tenant within thirty (30) days after the
date of the expiration or sooner termination of the term of this Lease
and the surrender of the Premises by Tenant in compliance with the
provisions of this Lease. THE SECURITY DEPOSIT MAY BE PLACED IN AN
INTEREST BEARING ACCOUNT AND ANY INTEREST THEREON SHALL BE THE
PROPERTY OF THE PARTY HOLDING SAME.
- If this box is checked, Agent shall hold the Security and
shall be entitled to the interest thereon.
UTILITY BILLS
6. (a) Tenant shall pay the following utilities: all utilities
(b) Landlord shall pay the following utilities: none
COMMON AREA COSTS; RULES AND REGULATIONS
7. If the Premises are part of a larger building or group of building,
Tenant shall pay as additional rental monthly, in advance, it pro rata
share of common area maintenance costs as hereinafter more
particularly set forth in the Special Stipulations. The Rules and
Regulations, if any, attached hereto are made a part of this Lease.
Tenant agrees to perform and abide by those Rules and Regulations, if
any, and such other Rules and Regulations, If any, as may be made from
time to time by Landlord.
USE OF PREMISES
8. The Premises shall be used for offices purposes only and no other.
The Premises shall not be used for any illegal purposes, nor in any
manner to create any nuisance or trespass, nor in any manner to
vitiate the insurance or increase the
rate of insurance on the Premises. In the event Tenant's use of the
Premises results in an increase in the rate of insurance on the
Premises, Tenant shall pay to Landlord, upon demand and as additional
rental, the amount any such increase.
ABANDONMENT OF THE PREMISES
9. Tenant agrees not to abandon or vacate the Premises during the term of
this Lease and agrees to use the Premises for the purposes herein
stated until the expiration hereof.
TAX AND INSURANCE ESCALATION
10. Tenant shall pay upon demand as additional rental during the term of
this Lease, and any extension or renewal thereof, the amount by which
all taxes (including but not limited to, ad valorem taxes special
assessments and any other governmental charges) on the Premises for
each tax year exceed all taxes on the Premises for the tax year
19______. In the event the Premises shall be determined by proration
on the basis that the rentable floor area of the Premises bears to the
rentable floor area of the entire property assessed. If the final
year of the Lease term fails to coincide with the tax year, then any
excess for the tax year during which the term ends shall be reduced by
the pro rate part of such tax year beyond the Lease term. If such
taxes for the year in which the Lease terminates are not ascertainable
before payment of the last month's rental, then the amount of such
taxes assessed against the property for the previous tax year shall be
used as a basis for determining the pro rata share, if any, to be paid
by Tenant for that portion of the last Lease year. Tenant shall
further pay, upon demand as additional rental, its pro rata share of
excess cost of fire and extended coverage insurance including any all
public liability insurance on the building over the cost for the first
year of the Lease term for each subsequent year during the term of
this Lease. Tenant's pro rata portion of increased taxes or share of
excess cost of fire and extended coverage and liability insurance, as
provided herein shall be payable within fifteen 15 days after receipt
of notice from Landlord as to the amount due.
INDEMNITY; INSURANCE
11. Tenant agrees to and hereby does indemnify and save Landlord harmless
against all claims for damages to persons or property by reason of
Tenant's use or occupancy of the Premises, and all expenses incurred
by Landlord because thereof, including attorney's fees and court
costs. Supplementing the foregoing and in addition thereto, Tenant
shall during all times of this Lease and any extension or renewal
thereof, and at Tenant's expense, maintain in full force and effect
comprehensive general liability Insurance with limits of $ 100,000 per
person and $ 1,000,000 per accident, and property damage limits of $
500,000, which insurance shall contain a special endorsement
recognizing and insuring any liability accruing to Tenant under the
first sentence of this paragraph 11, and naming Landlord as additional
insured. Tenant shall provide evidence of such insurance to Landlord
prior to the commencement of the term of this Lease. Landlord and
Tenant each hereby release and relieve the other, and waive any right
of recovery, for loss or damage arising out of or incident to the
perils insured against which perils occur in, on or about the
Premises, whether due to the negligence of Landlord or Tenant of their
agents, employees, contractors and/or invitees, to the extent that
such loss or damage is within the policy limits of said comprehensive
general liability insurance. Landlord and Tenant shall, upon
obtaining the policies of insurance required, give notice to the
insurance carrier or carriers that the foregoing mutual waiver of
subrogation is contained in this Lease.
REPAIRS BY LANDLORD
12. Landlord agrees to keep in good repair the roof, foundations and
exterior walls of the Premises (exclusive of all glass and exclusive
of all exterior doors) and underground utility and sewer pipes outside
the exterior walls of the building, except repairs rendered necessary
by the negligence or intentional wrongful acts of Tenant, its agents,
employees or invitees. If the Premises are part of a larger building
or group of buildings, then to the extent that the grounds are common
areas, Landlord shall maintain the grounds surrounding the building,
including paving, the moving of grass, care of shrubs and general
landscaping. Tenant shall promptly report in writing to Landlord any
defective condition know to it which Landlord is required to repair
and failure so to report such conditions shall make Tenant responsible
to Landlord for any liability incurred by Landlord by reason of such
conditions.
REPAIRS BY TENANT
13. Tenant accepts the Premises in their present condition and as suited
for the uses intended by Tenant. Tenant shall, throughout the initial
term of this Lease, and any extension or renewal thereof, at its
expense, maintain in good order and repair the Premises, including the
building, heating and air conditioning equipment (including but not
limited to replacement of parts, compressors, air handling units and
hearing units and other Improvements located thereon, except those
repairs expressly required to be made by Landlord hereunder. Unless
the grounds are common areas of a building(s) larger than the
Premises, Tenant further agrees to care for the grounds around the
building, including paving, the mowing of grass, care of shrubs and
general landscaping. Tenant agrees to return the Premises to Landlord
at the expiration, or prior to termination of this Lease, in as good
condition and repair as when first received, natural wear and tear,
damage by storm fire, lightning, earthquake or other casualty alone
excepted.
ALTERATIONS
14. Tenant shall not make any alterations, additions, or improvements to
the Premises without Landlord's prior written consent. Tenant shall
promptly remove any alterations, additions, or improvements
constructed in violation of this Paragraph 14 upon Landlord's written
request. All approved alterations, additions, and improvements will
be accomplished in a good and workmanlike manner, in conformity with
all applicable laws and regulations, and by a contractor approved by
Landlord, free of any liens or encumbrances. Landlord may require
Tenant to remove any alterations, additions or improvements (whether
or not make with Landlord's consent) at the termination of this Lease
and to restore the Premises to its prior condition, all at Tenant's
expense. All alterations, additions and improvements which Landlord
has not required Tenant to remove shall become Landlord's property and
shall be surrendered to Landlord upon the termination of this Lease,
except that Tenant may remove any of Tenant's machinery or equipment
which can be removed without material damage to the Premises. Tenant
shall repair, at Tenant's expense, any damage to the Premises caused
by the removal of any such machinery or equipment.
REMOVAL OF FIXTURES
15. Tenant may (if not in default hereunder) prior to the expiration of
this Lease, or any extension or renewal thereof, remove all fixtures
and equipment which it has placed in the Premises, provided Tenant
repairs all damage to the Premises cause by such removal.
DESTRUCTION OF OR DAMAGE TO PREMISES
16. If the Premises are totally destroyed by storm, fire, lightning,
earthquake or other casualty, this Lease shall terminate as of the
date of such destruction and rental shall be accounted for as between
Landlord and Tenant and of that date. If the Premises are damaged but
not wholly destroyed by any such casualties, rental shall xxxxx in
such proportion as use of the Premises has been destroyed and Landlord
shall restore Premises to substantially the same condition as before
damage as speedily as is practicable, whereupon full rental shall
recommence.
GOVERNMENTAL ORDERS
17. Tenant agrees, at its own expense, to comply promptly with all
requirements of any legally constituted public authority made
necessary by reason of Tenant's occupancy of the Premises. Landlord
agrees to comply promptly with any such requirements if not made
necessary by reason of Tenant's occupancy. It is mutually agreed,
however, between Landlord and Tenant, that if order to comply with
such requirements, the cost to Landlord or Tenant, as the case may be,
shall exceed a sum equal to one year's rent then Landlord or Tenant
who is obligated to comply with such requirements may terminate this
Lease by giving written notice of termination to the other party by
registered mail, which termination shall become effective sixty (60)
days after receipt of such notice and which notice shall eliminate the
necessity of compliance with such requirements by giving such notice
unless the party giving such notice of termination shall, before
termination becomes effective, pay to the party giving notice all cost
of compliance in excess of one year's rent, or secure payment of said
sum in manner satisfactory to the party giving notice.
CONDEMNATION
18. If the whole of the Premises, or such portion thereof as will make the
Premises unusable for the purposes herein leased, are condemned by any
legally constituted authority for any public use or purpose, then in
either of said events the term hereby granted shall cease from the
date when possession thereof is taken by public authorities, and
rental shall be accounted for as between Landlord and Tenant as of
said date. Such termination, however, shall be without prejudice to
the rights of either Landlord or Tenant to recover compensation and
damage caused by condemnation from the condemnor. It is further
understood and agreed that Tenant shall not have any rights in any
award made to Landlord by any condemnation authority.
ASSIGNMENT AND SUBLETTING
19. Tenant shall not, without the prior written consent of Landlord, which
shall not be unreasonably withheld, assign this Lease or any interest
hereunder, or sublet the Premises or any part thereof, or permit the
use of the Premises by any party other than the Tenant. Consent to
any assignment or sublease shall not impair this provision and all
later assignments or subleases shall be made likewise only on the
prior written consent of Landlord. The Assignee of Tenant, at option
of Landlord, shall become directly liable to Landlord for all
obligations of Tenant hereunder, but no sublease or assignment by
Tenant shall relieve Tenant of any liability hereunder.
EVENTS OF DEFAULT
20. The happening of any one or more of the following events (hereinafter
any one of which may be referred to as an "Event of Default") during
the term of this Lease, or any renewal or extension thereof, shall
constitute a breach of this Lease on the part of the Tenant: (1)
Tenant fails to pay the rental as provided for herein; (2) Tenant
abandons or vacates the Premises; (3) Tenant fails to comply with or
abide by and perform any other obligation imposed upon Tenant under
this Lease; (4) Tenant is adjudicated bankrupt; (5) a permanent
receiver is appointed for Tenant's property and such receiver is not
removed within sixty (60) days after written notice from Landlord to
Tenant to obtain such removal; (6) Tenant, either voluntarily or
involuntarily, takes advantage of any debt or relief proceedings under
any present or future law, whereby the rent or any part thereof is, or
is proposed to be, reduced or payment therefore deferred; (7) Tenant
makes an assignment for benefit of creditors; or (8) Tenant's effects
are levied upon or attached under process against Tenant, which is not
satisfied or dissolved within thirty (30) days after written notice
from Landlord to Tenant to obtain satisfaction thereof.
REMEDIES UPON DEFAULT
21. Upon the occurrence of Event of Default, Landlord my pursue any one or
more of the following remedies separately or concurrently, without
prejudice to any other remedy herein provided or provided by law; (a)
if the Event of Default involves nonpayment of rental and Tenant fails
to such default within five (5) days after receipt of written notice
thereof from Landlord, or if the Event of Default involves a default
in performing any of the terms of provisions of this Lease other than
the payment of rental, and Tenant fails to cure such default within
fifteen (15) days after the receipt of written notice of default from
Landlord , Landlord may terminate this Lease by giving written notice
to Tenant and upon such termination shall be entitled to recover from
Tenant damages as may be permitted under applicable law; or (b) if the
Event of Default involves any matter other than those set forth in
item (a) of this paragraph 21, Landlord may terminate this Lease by
giving written notice to Tenant and, upon such termination, shall be
entitled to recover from the Tenant damages in an amount equal to all
rental which is then due and the present value (discounted at ten
percent (10%) per annum) of all rental which would otherwise have
become due throughout the remaining term of this Lease, or any renewal
or extension thereof (as if this Lease had not been terminated); or
(c) upon any Event of Default, Landlord, as Tenant's agent, without
terminating this Lease may enter upon and rent the Premises, in whole
or in part, at the best price obtainable by reasonable effort, without
advertisement and by private negotiations and for any term landlord
deems proper, with Tenant being liable to Landlord for the deficiency,
if any, between Tenant's rent hereunder and the price obtained by
Landlord on reletting, provided, however, that Landlord shall not be
considered to be under any duty by reason of this provision to take
any action to mitigate damages by reason of Tenant's default. In the
event Landlord hires an attorney to enforce its rights upon default,
Tenant shall in addition be liable for reasonable attorney's fees and
all costs of collection.
EXTERIOR SIGNS
22. Tenant shall place no signs upon the outside walls or roof of the
Premises, except with the express written consent of the Landlord. Any
all signs placed on the Premises by Tenant shall be maintained in
compliance with governmental rules and regulations governing such
signs and Tenant shall be responsible to Landlord for any damage
caused by installation, use or maintenance of said signs, and all
damage incident to removal thereof.
LANDLORD"S ENTRY OF PREMISES
23. Landlord may advertise the Premises "For Rent" or "For Sale" sixty
(60) days before the termination of this Lease. Landlord may enter
the Premises at reasonable hours to exhibit same to prospective
purchasers of tenants and to make repairs required of Landlord under
the terms hereof or to make repairs to Landlord's adjoining property,
if any.
EFFECT OF TERMINATION OF LEASE
24. No termination of this Lease prior to the normal ending thereof, by
lapse of time or otherwise, shall affect Landlord's right to collect
rent for the period prior to termination thereof.
MORTGAGEE'S RIGHTS
25. Tenant's rights shall be subject to any bona fide mortgage, deed of
trust or other security interest which is now or may hereafter be
placed upon the Premises by Landlord. Tenant shall, if requested by
Landlord, execute a separate agreement reflecting such subordination.
QUIET ENJOYMENT
26. So long as Tenant observes and performs the covenants and agreements
contained herein, it shall at all times during the Lease term
peacefully and quietly have and enjoy possession of the Premises, but
always subject to the terms hereof. Provided, however, that in the
event Landlord shall sell or otherwise transfer its interest in the
Premises, Tenant agrees to attorn to any new owner or interest holder
and shall, if requested by Landlord, execute a separate agreement
reflecting such attornment, provided that said agreement requires the
new owner or interest holder to recognize its obligations and Tenant's
rights hereunder.
HOLDING OVER
27. If Tenant remains in possession of the Premises after expiration of
the term hereof, with Landlord's acquiescence and without any express
agreement of the parties, Tenant shall be a tenant at will at the
rental rate which is in effect at end of this Lease and there shall be
no renewal of this Lease by operation of law. If Tenant remains in
possession of the Premises after expiration of the term hereof without
Landlord's acquiescence, Tenant shall be a tenant at sufferance and
commencing on the date following the date of such expiration, the
monthly rental payable under Paragraph 3 above shall for each month,
or fraction thereof during which Tenant so remains in possession of
the premises, be twice the monthly rental otherwise payable under
Paragraph 3 above.
ATTORNEY'S FEES
28. In the event that any actin or proceeding is brought to enforce any
term, convenant or condition of this Lease on the part of Landlord or
Tenant, the prevailing party in such litigation shall be entitled to
recover reasonable attorneys' fees and costs.
RIGHTS CUMULATIVE
29. All rights, powers and privileges conferred hereunder upon parties
hereto shall be cumulative and not restrictive of those given by law.
WAIVER OF RIGHTS
30. No failure of Landlord to exercise any power given Landlord hereunder
or to insist upon strict compliance by Tenant of its obligations
hereunder and no custom or practice of the parties at variance with
the terms hereof shall constitute a waiver of Landlord's right to
demand exact compliance with the terms hereof.
ENVIRONMENTAL LAWS
31. Landlord represents that to the best of its knowledge and belief, (1)
the Premises are in compliance with all applicable environmental laws,
and (2) there are not excessive levels (as defined by the
Environmental Protection Agency) of radon, toxic waste of hazardous
substances on the Premises. Tenant represent and warrants that Tenant
shall comply with all applicable environmental laws and Tenant shall
not permit any of his employees, agents, contractors or
subcontractors, or any person present on the Premises to generate,
manufacture, store, dispose or release on, about, or under the
Premises any hazardous substances which would result in the Premises
not complying with any applicable environmental laws.
TIME OF ESSENCE
32. Time is of the essence of this Lease.
DEFINITIONS
33. "Landlord" as used in this Lease shall include the undersigned, its
heirs, representatives, assigns and successors in title to the
Premises. "Agent" as used in this Lease shall mean the party
designated as same in Paragraph 34, its heirs, representatives,
assigns and successors. "Tenant" shall include the undersigned and
its heirs, representatives, assigns and successors, and if this Lease
shall be validly assigned or sublet, shall include also Tenant's
assignees or sublessees as to the Premises covered by such assignment
or sublease. "Landlord", "Tenant" and "Agent" include male and
female, singular and plural, corporation, partnership or individual,
as may fit the particular parties.
NOTICES
34. All notices required or permitted under this Lease shall be in writing
shall be personally delivered or sent by U.S. Certified Mail, return
receipt requested, postage prepaid. Notices to Tenant shall be
delivered or sent to the address shown below, except that upon
Tenant's taking possession of the Premises, than Premises shall be
Tenant's address for such purposes. Notices to Landlord and Agent
shall be delivered or sent to the addresses hereinafter stated, to
wit:
Landlord: ABT Building Products
Exterior Products Group
00000 Xxxxxx Xxx.
Xxxxxxxxxxxx, XX 00000
Agent:
Tenant: En Pointe Technologies
000 X. Xxxxxxxxx Xxxx.
Xx Xxxxxxx, XX 00000
000-000-0000
All notices shall be effective upon delivery. Any party may change its notice
address upon written notice to the other parties.
ENTIRE AGREEMENT
35. This Lease contains the entire agreement of the parties hereto, and no
representations, inducements, promises or agreements, oral or
otherwise, between the parties, not embodied herein shall be of any
force or effect. This Lease may not be modified except by a writing
signed by all of the parties hereto.
SPECIAL STIPULATIONS
36. Any special stipulations are set forth in the attached Exhibit
_______________. In so far as said Special Stipulations conflict with
any of the foregoing provisions, said Special Stipulations shall
control.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals,
the date and year first above written.
LANDLORD:
Individual Business Entity
(SEAL) -----------------------------------
------------------------------ (Name of Firm)
(SEAL) By: (SEAL)
------------------------------ ---------------------------
TENANT:
Individual Business Entity
(SEAL) -----------------------------------
------------------------------ (Name of Firm)
(SEAL) By: (SEAL)
------------------------------ ---------------------------
ADDENDUM:
This lease is subject to all provisions of the attached lease agreement
dated June 5, 1995 and between ABT Building Products Corporation and Atapco Vep,
Inc., EnPointe Technologies agrees to all provisions of the lease between ABT
and Atapco.
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Initial Initial
