EXHIBIT 10.24
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Heartsoft
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Tenant
STANDARD
OFFICE BUILDING LEASE AGREEMENT
TABLE OF CONTENTS
COVER PAGE................................................................. 2
PARTIES.................................................................... 5
TERM....................................................................... 5
PREMISES .................................................................. 5
POSSESSION................................................................. 5
RENT....................................................................... 6
USE........................................................................ 7
ASSIGNMENT; SUBLET SUBORDINATION; ESTOPPEL; NOTICE TO MORTGAGE............. 9
MAINTENANCE & REPAIR: RIGHT OF ENTRY; ALTERATIONS, LIENS, SIGNS ........... 10
INSURANCE; INDEMNITY; SUBROGATION; DAMAGE AND DESTRUCTION.................. 12
CONDEMNATION............................................................... 13
SURRENDER OF PREMISES...................................................... 13
DEFAULT; EVENTS; REMEDIES.................................................. 14
MISCELLANEOUS PROVISIONS................................................... 15
COVER PAGE
LEASE TERMS: Dated this ______ day of January, 2000
For reference purposes only
1.1 PARTIES AND NOTICE ADDRESSES:
Landlord: N. D. Xxxxxxx
0000 Xxxxx xxxxxxx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
Tenant: Heartsoft Software Co.
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P. O. Xxx 000000
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Xxxxx, Xxxxxxxx 00000
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State of Incorporation: Oklahoma
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(Section 3.1)
1.2 PREMISES: Xxxxx 000 X
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0000 Xxxxx Xxxxxxx Xxxxx
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Xxxxxx Xxxxx, Xxxxxxxx 00000
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Approximate Square Feet Rentable: 442
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1.3 TERM: Commencement Date: February 1, 2000
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Expiration Date: January 31, 2001
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(Section 3.1)
Renewal Option: 3+ years
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Commencement Date: February, 2001
Expiration Date: November 30, 2004
Date option must be exercised in writing:
September 1, 2000
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(Section5.4)
1.4 Rent:
Base Rent: Monthly $369.00 Annual $4,428.00
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Due: 1st day of month. Late payment charges of
$25.00 for rent received after 10th. Interest at 18% per annum on delinquencies.
$738.00 paid on execution of lease, constituting first month rent and $369.00
security deposit $N/A per diem for early occupancy.
Landlord Tenant
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Rent Adjustments: Based on CPI for all urban consumers all
items. Dallas-Ft. Worth, Texas
Base Period September 1999 159.8
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month year CPI Base Number
Rental Adjustments: Tax and Insurance Increases Base Year.
Tax: (Calendar)
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Insurance: (Fiscal)
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(Section 6)
Pro-Rata Percentages:
Approximate rentable feet in building 11,500
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Approximate rentable feet of premises 442
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Pro-rata percentage attributable to premises
3.84 % operating costs
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% taxes
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% insurance
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(Section 6.5.2)
1.5 USE OF PREMISES:
Solely for: Office Purposes
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(Section 7)
1.6 INSURANCE REQUIREMENTS:
Tenant: Fire ________ Extended Coverage _____________
Business interruption ___________ Liability Limits
$100,000.00 Per occurrence Other ______________
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Landlord: Fire X Extended Coverage X
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Rental Income X Liability Limits $500,000.00
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per occurrence Other _______________________
(Section 10)
Landlord Tenant
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1.7 GUARANTOR:
NAME: N/A
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Address:
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1.8 CONTENTS:
This lease consists of:
Pages 1 through
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Sections 1.1 through
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Exhibits A. Legal description
B. Plot or floor plan
C. Construction obligations, if any
D. Landlord acknowledgment of commencement date
Addenda
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THESE COVER PAGES ARE INCORPORATED AS PART OF THIS LEASE AND EXECUTED
BY LANDLORD AND TENANT
N. D. XXXXXXX HEARTSOFT SOFTWARE CO.
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By: /s/ N. D. Xxxxxxx By: /s/ Xxxxxxxx X. Xxxxx, CEO
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XXXXXXXX XXXXX
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Tax identification # 00-0000000
Landlord Tenant
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LEASE
2. PARTIES:
2.1 The Parties to this lease are as shown on the cover page of this
lease.
3. TERM:
3.1 The term of this lease is as shown on the cover page of this lease.
4. PREMISES:
4.1 Landlord leases to Tenant and Tenant leases from Landlord the
Premises identified on the cover page of this lease, situated in the
Building named on the cover page. The approximate square footage of the
Premises and the percentage that the Premises represent of the rentable
area of the Building are shown on the cover page. Premises are outlined
on Exhibit B if attached.
5. POSSESSION:
5.1 Delayed delivery: Written notice from the Landlord to Tenant that
Premises are available for occupancy on a specific date shall
constitute delivery of possession of Premises to Tenant. If possession
is not delivered to Tenant by a commencement date and cause for delay
is not the fault of Tenant or its agents, the commencement date shall
be extended to the date possession is delivered to Tenant. If cause for
the delay is the fault of Tenant or its agents, Landlord may cancel
this Lease by notice to Tenant fifteen (15) days prior to the effective
date of cancellation.
5.2 Early occupancy: The commencement date of this lease shall be the
earlier of the date possession of the Premises is delivered to Tenant
or the date Tenant occupies, commences alterations to or conducts
business in all or a part of the Premises.
5.3 Acceptance of premises: Occupying all or any portion of the
Premises by Tenant shall be conclusive that the Premises are in
satisfactory condition and acceptable to Tenant subject to latent
defects and deficiencies listed in writing by Tenant to Landlord within
ten (10) days after Tenant's occupancy.
5.4 Renewal option: If not in default, Tenant shall have the option to
renew this lease as delineated on the cover page of this lease, with
notice of intent to exercise such option made in writing the prescribed
time before the maturity date of the base lease or earlier exercised
options. Once exercised, the option is irrevocable. Base rent during
any renewal term shall be determined by the formula used for the
original term of the lease if such lease extends beyond one year.
Tenant shall have not further renewal option. All other provisions of
this lease remain the same during any renewal term.
Landlord Tenant
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6. RENT:
6.1 Rent: When Due, Where Paid: All monies payable by Tenant to
Landlord under this lease shall be deemed to be rent and shall be
payable and recoverable as rent in the manner herein provided and
Landlord shall have all rights against Tenant for default in any such
payment. Rent shall be paid to the Landlord in advance, on the first
day of each calendar month, during the entire term of this lease,
without deduction or set-off, in legal tender of the jurisdiction in
which the building is located at the address of the Landlord as set
forth, or to such other person or entity or to such other address as
Landlord may designate in writing. Tenant's obligation to pay all rent
due under this lease shall survive the expiration or earlier
termination of this lease. Should this lese commence on a day other
than the first day of the month or terminate on a day other than the
last day of the month, the rent for such partial month shall be
pro-rated based on a 365-day year.
6.2 Basic Rent: Tenant agrees to pay to Landlord the rent as shown on
the cover page of this Lease.
6.3 Interest on Delinquencies: If Tenant shall fail to pay any rent
when due, such unpaid amounts shall bear interest at the rate shown on
the cover page of this Lease.
6.4 Late Payment Charge: If Tenant shall fail to pay any rent when due,
Tenant shall pay to Landlord, in addition to the interest provided for
in Section 6.3, a late payment charge for each occurrence of an amount
as shown on the cover page of this Lease.
6.5 Adjustments to Rent:
6.5.1 Property Taxes Caused by Tenant Improvements:
In the event that an increase in Real Property Taxes is caused
by the Tenant's improvements made to the Premises, Tenant
shall pay the increase attributable to such improvements.
6.5.2 Pro-rata Definition: Tenant's pro-rata share is defined
as the ratio of the square footage of the Premises to the
total rentable square footage of the Building. In this Lease,
Tenant's pro-rata share is shown on the cover page to increase
or decrease due to an increase in the square footage of the
premises.
6.5.3 Insurance: Tenant shall pay its pro-rata share of
increased cost of insurance maintained by Landlord on the
building or the operation thereof.
6.5.4 Taxes: Tenant shall pay its pro-rata share of all Real
Property Taxes levied and assessed upon the Building and the
land upon which the Building is situated which are in excess
of the Real Property Taxes assessed for the tax year in which
the commencement date of this Lease occurs.
Landlord Tenant
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6.5.5 Cost of Living: Annual adjustments to rent according to
the following formula:
CPI All Urban Consumers. All Items Index Number,
Dallas-Ft. Worth for most recent anniversary date
Of CPI Base Number date on Cover Page
Divided By
CPI Base Number shown on Cover Page
Any number over one (1) resulting from the division above,
multiplied by the base rent, yields the increase for cost of
living over the base rent which will apply to the following
year and be paid by Tenant. In no case will the rent be less
than the base rent called for on the cover page.
6.6 Landlord Lien: To secure payment of said rent, Landlord is
hereby given a lien on all movable property of Tenant placed
in the premises, but the statutory landlord's lien for rent is
not waived, the express lien herein granted being in addition
thereto.
7. USE:
7.1 General: Premises shall be used only for the use specified on the
cover page of this Lease and for no other use. Tenant shall, at
Tenant's expense, comply with all laws, rules, regulations,
requirements, and ordinances enacted or imposed by any government unit
having jurisdiction over the Building, Premises, Landlord or Tenant;
7.2 Restrictions on Use:
Tenant shall not:
7.2.1 Do or permit to be done anything which will invalidate
or increase the cost of any insurance coverage on the Building
and the Premises;
7.2.2 Do or permit anything to be done in the Building or on
the Premises which will obstruct or interfere with the rights
of other tenants or occupants of the building;
7.2.3 Use, allow or permit the Premises to be used for any
improper or objectionable purposes;
7.2.4 Cause, maintain or permit any nuisance in or about the
Premises;
7.2.5 Commit or permit any waste to be committed in the
Premises;
7.2.6 Use or occupy Premises in violation of any law, rule,
regulation, requirement or ordinance enacted or imposed by any
governmental unit having jurisdiction over the Building,
Premises, Landlord or Tenant;
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7.2.7 Overload, damage or obstruct any utility lines providing
services to the Building or Premises;
7.2.8 Install any fixtures or equipment which will overload
the floors in the Premises or in any way affect the structural
capacity or design of the Premises or the Building.
7.3 Building Regulations: Tenants shall obey all rules and regulations
of the Building if set forth by the Landlord. In such cases rules will
be attached to an incorporated as a part of this Lease. Landlord shall
have the right to make changes or additions to such rules and
regulations provided such changes or additions, except those affecting
the safety and operation of the Building or Premises, do not
unreasonably affect Tenant's use of the Premises. Landlord shall not be
liable for failure of any tenant to obey such rules and regulations.
Failure by Landlord to enforce any current or subsequent rules or
regulations against any tenant of the Building shall not constitute a
waiver thereof.
7.4 Quiet Enjoyment: Landlord agrees that, subject to terms, covenants
and conditions of this Lease, Tenant may, upon observing and complying
with all terms, covenants and conditions of this Lease, peaceably and
quietly occupy the Premises.
7.5 Landlord Services: Landlord shall furnish Tenant those services
hereafter described. Janitor's service and refuse removal service shall
be furnished following normal business hours. All other services shall
be furnished during the hours of 7:00 a.m. to 6:00 p.m. on weekdays and
7:00 a.m. to 1:00 p.m. on Saturdays (except holidays). If any services
to be provided are suspended or interrupted by strikes, repairs,
alterations, orders from any governmental authority or any cause beyond
Landlord's reasonable control, Landlord shall not be liable for any
costs or damages incurred by Tenant. Suspension or interruption shall
not result in any abatement of rent, be deemed an eviction or relieve
Tenant of Performance of Tenant's obligations under this Lease.
Services Furnished:
7.5.1 Elevator service in common with others, where
applicable;
7.5.2 Men's and women's restrooms situated on the floor on
which the Premises are located together with hot and cold
water for use in said restrooms;
7.5.3 One refrigerated drinking fountain on the floor on which
the Premises are located;
7.5.4 A clean street-level lobby, entrance way, elevator
lobbies, public corridor and other public portions of the
Building for use in common with others;
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7.5.5 Electric current sufficient to operate the Building's
standard flourescent lighting fixtures and to provide for wall
or floor duplex receptacles installed in Premises;
7.5.6 Relamping and maintaining building standard fluorescent
lighting fixtures installed in Premises;
7.5.7 Heating, ventilating and air conditioning sufficient to
provide, in Landlord's judgment, reasonable comfort for normal
office use in Premises having a maximum occupancy load of one
person per 100 square feet.
7.5.8 Janitor service and refuse removal Monday through Friday
(exclusive of holidays). The level of janitor service and
refuse removal provided shall not include cleaning,
maintenance and providing supplies for eating facilities,
computer centers or special equipment areas.
8. ASSIGNMENT; SUBLET; SUBORDINATION; ESTOPPEL; NOTICE TO MORTGAGE;
SALE BY LANDLORD
8.1 Assignment Sublet: Tenant shall not assign this Lease or any part
thereof or sublet all or any part of the Premises without prior written
consent of Landlord, which shall not be unreasonably withheld. Any
assignment or subletting consented to by Landlord shall be evidenced in
writing in a form acceptable to Landlord. This Lease shall not be
assignable by operation of Law. Any transfer of this Lease by merger,
consolidation, liquidation or changes in ownership of or power to vote
the majority of outstanding stock shall constitute an assignment. Any
assignment or subletting shall not diminish the liability of the
Tenant. Consent by Landlord shall not relieve Tenant from obtaining
written consent to any subsequent assignment.
8.2 Subordination: This Lease is subject and subordinated to all
present and future mortgages, deeds of trust and other encumbrances
affecting the Premises or the property of which the Premises are a
part. Within fifteen (15) days after written request from Landlord,
Tenant agrees to execute, at no expense to Landlord, any instrument
which may be deemed necessary or desirable by Landlord to further
effect the subordination of this Lease to any mortgage, deed of trust
or encumbrance. Tenant hereby irrevocably appoints Landlord as
attorney-in-fact of Tenant at any time for Tenant, and in Tenant's
name, to execute proper subordination agreements to this effect.
8.3 Attornment: If the interest of Landlord is transferred to any
person or entity by reason of foreclosure or other proceedings for
enforcement of any mortgage, deed of trust or security interest or by
delivery of a deed in lieu of foreclosure or other proceedings, Tenant
shall immediately and automatically attorn to such person or entity. In
event of such
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transfer, this Lease and Tenant's rights hereunder shall continue so
long as Tenant is not in default.
8.4 Estoppel Certificate: Tenant will at any time and from time to
time, upon not less than twenty (20) days prior request by Landlord,
execute, acknowledge and deliver to Landlord a statement in writing
executed by Tenant certifying that this Lease is unmodified and in full
effect or if there have been modifications, that this Lease is in full
effect as modified, setting forth such modifications; the dates to
which the rent has been paid, and either stating that to the knowledge
of the signer of said statement that no default exists or specifying
each such default of which the signer may have knowledge. It is
intended that any such statement executed by Tenant may be relied upon
by any prospective purchaser or mortgagee or existing mortgagee of the
Building.
8.5 Notice of Mortgagee: In the event of any act or omission by
Landlord which would give Tenant the right to damages or terminate this
Lease by reason of a constructive or actual eviction from all or part
of the Premises, Tenant shall not commence action or terminate until it
shall have given written notice to Landlord and the holders of the
indebtedness or other obligation secured by a first mortgage or first
deed of trust affecting the Building, if the name and address of such
holder has previously been furnished Tenant, and until a reasonable
period of time for remedying such act or omission shall have elapsed
following the giving of such notice, during which time Landlord and
such holder, or either of them, their agents or employees, shall be
entitled to enter the Premises and do whatever may be necessary to
remedy such act or omission. During the period following the giving of
such notice and during the remedying of such act omission, the rent
shall be abated and apportioned only to the extent that any part of the
Premises shall be untenantable.
8.6 Sale by Landlord: A sale, conveyance or assignment of the Building
shall operate to release Landlord from liability and after the
effective dates thereof upon all of the covenants, terms and conditions
of this Lease, express or implied, except as such may relate to the
period prior to such effective date and Tenant shall thereafter look
solely to Landlord's successor in interest in and to this Lease. This
Lease shall not be affected by any such sale, conveyance or assignment,
and Tenant shall attorn to Landlord's successor in interest thereunder.
9. MAINTENANCE AND REPAIRS: RIGHT OF ENTRY; ALTERATIONS; LIENS; SIGNS
9.1 Maintenance or Repairs by Tenant: Tenant shall maintain the
Premises in good condition. Tenant shall repair or replace any damage
or injury to the Premises or the Building caused by Tenant, its agents,
employees or invitees. All maintenance and repairs made by Tenant shall
be performed only by licensed contractors first approved by Landlord.
Tenant shall require the contractor to comply with Landlord's
regulations regarding all work to be performed.
Landlord Tenant
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9.2 Landlord's Right to Maintain or Repair: If, within ten days
following occurrence, Tenant fails to repair or replace any damage to
the premises of Building caused by Tenant, its agents, employees or
invitees Landlord may, at its option, cause all required maintenance,
repairs or replacements to be made. Tenants shall promptly pay Landlord
all costs incurred plus an administrative fee of 20 percent of such
costs.
9.3 Landlord's Right of Entry: Landlord, its agents or employees shall
have the right to enter the premises at reasonable hours to make
inspections, alterations, or repairs to the Building or the Premises.
In event of emergency, Landlord, its agents or employees shall have the
right of entry at an time and may perform any acts related to safety,
protection, preservation or improvement of the Building or the
Premises. Except for repair of casualty damage, Tenant shall not be
entitled to any abatement or reduction of the rent because of work
performed within the Building or Premises by Landlord.
9.4 Maintenance by Landlord: Landlord shall repair, replace and
maintain the external and structural parts of the Building which do not
comprise a part of the Premises and are not leased to others. Landlord
shall perform such repairs, replacements and maintenance with
reasonable dispatch, in a good and workmanlike manner, but Landlord
shall not be liable for an damages, direct, indirect or consequential,
or for damages for personal discomfort, illness or inconvenience of
Tenant by reason of failure of such equipment, facilities or systems or
reasonable delays in the performance of such repairs, replacements and
maintenance, unless caused by the deliberate act or omission, or the
negligence of Landlord, its servants, agents or employees.
9.5 Alterations by Tenant: Tenant shall make no changes, additions
alterations or improvements to the Premises without the prior written
consent of Landlord and subject to all rules, requirements and
conditions imposed by Landlord and subject to all rules, requirements
and conditions imposed by Landlord at the time such consent is given.
Landlord shall have the right to withhold its consent.
9.6 Alterations by Landlord: Landlord may make any repairs, alterations
or improvements which Landlord deems necessary or advisable for the
preservation, safety or improvements of the Building or the Premises.
9.7 Liens: Tenant shall cause no liens of any kind, including but not
limited to mechanics liens, liens for materials, wages, labor or
services, to be placed against the Premises or Building in which the
Premises are situated.
9.8 Signs: Tenants shall not inscribe any inscription or post, place or
in any manner display any sign, notice, picture, placard, poster or
advertising matter anywhere in or about the Building or Premises at
places visible (either directly or indirectly as an outline or shadow
on a glass pane) from anywhere outside the Premises without Landlord's
prior
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written consent. Upon expiration or sooner termination of this Lease
Tenant shall remove all signs or advertising consented to by Landlord
and shall repair any damage caused by such removal.
10. INSURANCE, INDEMNITY, SUBROGATION, DAMAGE AND DESTRUCTION
10.1 Insurance by Landlord: Landlord may maintain insurance for those
perils and in amounts which would be considered prudent for similar
income type property situated in the general area of the Building or
which is required by any mortgagee or creditor of Landlord. Cost of all
insurance maintained by Landlord shall be considered as a part of the
Operating Costs of the Building.
10.2 Insurance by Tenant:
Tenant shall maintain at Tenants expense:
10.2.1 Fire insurance with extended coverage endorsement for
not less than 80% of the current replacement cost of Tenant
improvements, trade fixtures, furniture and equipment situated
in the Premises.
10.2.2 Comprehensive public liability insurance on an
occurrence basis with respect to Tenant's business and
occupancy of the premises for any one occurrence or claim of
not less than $100,000.00 or such other amount as Landlord may
reasonably require in writing from time to time.
10.2.3 Insurance against such other perils and in such amounts
as Landlord may from time to time reasonably require in
writing. Such request shall be made on the basis that the
insurance coverage requested is customary at the time for
prudent tenants.
10.2.4 All policies of insurance maintained by Tenant shall be
in a form acceptable to Landlord, insured by an insurer
licensed to do business in the state or province in which the
building is situated, require at least 15 days written notice
to Landlord of termination or material alteration and waive,
to the extent available, any right of subrogation against
Landlord. If requested by Landlord, Tenant shall promptly
deliver to Landlord certified copies or other evidence of such
policies and evidence satisfactory to Landlord that all
premiums have been paid and policies are in effect.
10.3 Indemnity: Tenant shall indemnify and hold harmless Landlord from
all loss, damage, liability or expense, including attorneys fees,
resulting from any injury to any person or any loss of or damage to any
property caused by or resulting from any act, omission or negligence of
Tenant or any officer, employee, agent, contractor, invitee or visitor
of Tenant in or about the Premise or the Building, but the foregoing
provision shall not be construed to make Tenant responsible for loss,
damage liability or expense resulting from injuries to third parties
caused by any act, omission or negligence of Landlord or of any
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officer, employee, agent, contractor, invitee or visitor of Landlord.
Landlord shall not be liable for any loss or damage to person or
property sustained by Tenant, or other persons, which may be caused by
the Building or the premises, or any appurtenances thereto, being out
of repair or by the bursting or leakage of any water, gas, sewer or
steam pipe, or by theft or by any act of neglect of any tenant or
occupant of the building, or of any other person, or by any other cause
whatsoever, unless caused by the negligence of Landlord.
10.4 Waiver of Subrogation: To the extent that a loss is covered by
insurance in force and recovery is made for such loss, the Landlord and
Tenant hereby mutually release each other from liability and waive all
right of recovery against each other from any loss from perils insured
against under their respective fire insurance policies (including
extended coverage) provided that this waiver shall not be applicable if
it has the effect of invalidating any insurance coverage of Landlord or
Tenant.
10.5 Delay Beyond Landlord's Control: No penalty shall accrue to
Landlord for delay in commencing or completing repairs caused by
adjustment of insurance claims, governmental requirements or any cause
beyond Landlord's reasonable control.
11. CONDEMNATION
11.1 Condemnation: Award: Termination: If the Building or Premises
shall be taken or condemned for any public purpose, or for any reason
whatsoever, to such an extent as to render either or both untenable,
either Landlord or Tenant shall have the option to terminate this Lease
effective as of the date of taking or condemnation. If the taking or
condemnation does not render the Building and the Premises
untenantable, this Lease shall continue in effect and Landlord shall
promptly restore the portion not taken to the extent possible to the
condition existing prior to the taking. If, as a result of such
restoration, the area of the Premises is reduced, the rental shall be
reduced proportionately. All proceeds from any taking or condemnation
shall be paid to Landlord. Tenant waives all claim against such
proceeds. A voluntary sale or conveyance in lieu of but under the
threat of condemnation shall be considered a taking or condemnation for
public purpose.
12. SURRENDER OF PREMISES
12.1 Surrender at Expiration: Upon expiration or other termination of
this Lease. Tenant shall immediately surrender possession of the
Premises to Landlord in substantially the condition in which Tenant is
required to maintain the Premises except for reasonable wear and tear
and damage by fire or casualty. All keys which Tenant has been
furnished for any locks within the Building and th Premises shall be
delivered to Landlord. Upon surrender , all rights, title and interest
of Tenant in the Premises shall cease. All property remaining in the
Premises following surrender shall be considered to have been abandoned
by Tenant and Landlord may dispose of it in any manner Landlord wishes.
Tenant shall reimburse Landlord for all costs incurred for disposal
together with all costs for repairs required because of removal of all
or any of such abandoned property.
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13. DEFAULT: EVENTS: REMEDIES
13.1 The occurrence of any one of the following events shall constitute
a default of this lease by Tenant.
13.1.1 Failure of Tenant to make any payment of rent or other
required payment, when due, and such failure continues for a
period of five days after mailing of written notice by
Landlord to Tenant:
13.1.2 Vacating or abandonment of all or a substantial portion
of the Premises.
13.1.3 Failure of Tenant to comply with any provision of this
lease, other than payment of rent, and such failure shall
continue for fifteen days after mailing of written notice by
Landlord to Tenant; provided however, that if the nature of
Tenants's default is such that more than fifteen days are
reasonably required for its cure, Tenant shall not be in
default if Tenant commences such cure to completion:
13.1.4 The making of an assignment or general arrangement for
the benefit of creditors by Tenant or guarantors of Tenant's
obligations:
13.1.5 The filing by Tenant or a guarantor of Tenant's
obligations of a petition under any section or chapter of the
present Federal Bankruptcy Act (or Canadian equivalent) or
amendment thereto or under any similar law or statute of the
United State (or Canada) or any state or province thereof, or
the adjudication of Tenant or guarantor of Tenant's
obligations as a bankrupt or insolvent in proceedings filed
against Tenant or guarantor, and such adjudication shall not
have been vacated, set aside or stayed within the time
permitted by law.
13.1.6 The appointment of a receiver or trustee for all or
substantially all of the assets of Tenant or any guarantor of
Tenant's obligations and such receivership shall not have been
terminated or stayed within the time permitted by law;
13.1.7 The attachment, execution or other judicial seizure of
substantially all of Tenant's assets located in the Premises
or of Tenant's interest in this Lease where such seizure is
not discharged within thirty (30) days.
13.2 Remedies in Event of Default: Upon the occurrence of any event of
default, Landlord shall have the option to do any one or more of the
following without any notice of demand, in addition to and not in
limitation of any other remedy permitted by law or this Lease:
13.2.1 Terminate this Lease in which event Tenant shall
immediately surrender the Premises to Landlord. If Tenant
shall fail to do so, Landlord may without notice and prejudice
to any other remedy available, enter and take possession of
the Premises and remove Tenant or anyone occupying the
Premises and its effects without being
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liable to prosecution or any claim for damages. Tenant agrees
to indemnify Landlord for all loss and damage suffered by
Landlord because of such termination whether through inability
to relet the Premises or otherwise, including any loss of rent
for the remainder of the term of the Lease.
13.2.2 Declare the entire amount of all rent which would have
become due and payable during the remainder of the term of
this Lease to be due and payable immediately, in which event
Tenant agrees to pay the same to Landlord immediately. Such
payment shall constitute payment in advance of the rent
stipulated for the remainder of the Lease term. Acceptance by
Landlord of the payment of such rent shall not constitute a
waiver of any then existing default thereafter occurring.
13.2.3 Enter upon and take possession of the Premises as agent
of Tenant without terminating this Lease and without being
liable to prosecution or any claim for damages. Landlord may
relet all or any portion of the Premises as the agent of
Tenant for such term and upon such terms as Landlord sees fit
and receive the rent, in which event Tenant shall pay to
Landlord on demand the cost of renovating, repairing and
altering the Premises for a new tenant or tenants, plus all
costs of reletting the Premises and any deficiency arising by
reason of such reletting; provided however, that Landlord
shall have no duty to relet the Premises and Landlord's
failure to do so shall not release Tenant's liability for rent
or damages. If Landlord elects to enter and relet the Premises
the Landlord may at any time thereafter elect to terminate
this Lease for Tenant's default. If Landlord takes possession
of the Premises. Landlord shall have the right to rent any
other available space in the Building before reletting or
attempting to relet the Premises.
13.2.4 Landlord may do whatever Tenant is obliged to do by the
provisions of this lease and may enter the Premises without
being liable to prosecution or claim for damages in order to
accomplish this purpose. Tenant agrees to reimburse Landlord
immediately upon demand for any expense which landlord may
incur in complying with the terms of this lease on behalf of
Tenant. Tenant agrees that Landlord shall not be liable for
any damages to Tenant from such action, whether caused by
negligence of Landlord or otherwise.
14. MISCELLANEOUS PROVISIONS.
14.1 Waiver: No provisions of this lease shall be deemed to have been
waived by Landlord unless such waiver is in writing signed by Landlord.
Landlord's waiver of a breach of any term or condition of this Lease
shall not prevent a subsequent act, which would have originally
constituted a breach, from having the effect of any original breach.
Landlord's receipt of rent with knowledge of a breach by Tenant of any
term or condition of this Lease shall not be deemed a waiver of such
breach. Landlord's failure to enforce against Tenant or any other
tenant of the Building any of the rules or regulations made by Landlord
shall not
Landlord Tenant
15
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be deemed a waiver of such rules or regulations. No act or thing done
by Landlord, its agents or employees during the lease term shall be
deemed an acceptance of a surrender of the Premises and no agreement to
accept a surrender of the Premises shall be valid unless in writing
signed by Landlord. The delivery of keys to any of Landlord's agents or
employees shall not operate as a termination of this Lease or a
surrender of the Premises. No payment by Tenant, or receipt by
Landlord, of a lesser amount than the rent due shall be deemed to be
other than on account of the earliest stipulated rent, nor shall any
endorsement or statement on any check and any letter accompanying or
payment as rent be deemed as accord and satisfaction and Landlord may
accept such check or payment without prejudice to Landlord's right to
recover the balance of such rent or pursue any other remedy available
to Landlord.
14.2 Holding Over: If Tenant shall fail to vacate the Premises upon
expiration or sooner termination of this Lease, Tenant shall be a
month-to-month Tenant and subject to all laws of the state or province
in which the Building is situated applicable to such tenancy. The rent
to be paid Landlord by Tenant during such continued occupancy shall be
125% of that being paid by Tenant as of the date of expiration or
sooner termination.
14.3 Removal of Property: If Tenant shall fail to remove any of this
property of any nature from the Premises or Building at the termination
of this Lease or when Landlord has the right of re-entry. Landlord may,
at its option immediately remove and store said property without
liability for loss or damage, such storage to be for the account and at
the expense of Tenant. In the event that Tenant shall not pay the cost
of storing any such property after it has been stored for a period of
thirty days or more, Landlord may, at its option, sell or permit to be
sold, any or all of such property at public or private sale, in such
manner and at such times and places as Landlord in its sole discretion
may deem proper, without notice to Tenant, and shall apply the proceeds
of such sale: first to the cost and expense of such sale, including
reasonable attorneys fees actually incurred; second to the payment of
the cost for storing such property; third to the payment of any other
money which may then be or thereafter become due Landlord from Tenant
under any of the terms of this Lease; and fourth, the balance, if any,
to Tenant.
14.4 Notices: All notices under this Lease shall be in writing and
delivered in person or sent by prepaid registered or certified mail to
Landlord at the place designated on the cover page, and to the Tenant
at the place designated on the cover page or to the addresses as
hereafter may be designated by either party in writing. Notices mailed
shall be deemed given on the date of mailing.
14.5 Consent Not Unreasonably Withheld: Unless otherwise specifically
provided, whenever consent or approval of Landlord or Tenant is
required under the terms of this Lease, such consent or approval shall
not be unreasonably withheld or delayed. Tenant's sole remedy if
Landlord unreasonably withholds or delays consent or approval shall be
an
Landlord Tenant
16
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action for specific performance and Landlord shall not be liable for
damages. If either party withholds any consent or approval, such party
shall on written request deliver to the other party a written statement
giving the reasons therefor.
14.6 Attorney Fees: If, on account of any breach or default by either
Landlord or Tenant of their respective obligations under this Lease, it
shall become necessary to employ an attorney to enforce or defend any
of its rights or remedies hereunder, and should such party prevail, it
shall be entitled to reasonable attorney fees incurred.
14.7 Successors: Subject to the provisions pertaining to assignment and
subletting, the covenants and agreements of this Lease shall be binding
upon the heirs, legal representatives, successors and assigns of any or
all of the parties hereto.
14.8 Relationship of Parties: Nothing contained in this Lease shall
create any relationship between the Landlord and Tenant other than that
of Landlord and Tenant, and it is acknowledged and agreed that Landlord
does not in any way for any purpose become a partner of Tenant in the
conduct of Tenant's Business, or a joint venturer or a member of a
joint or common enterprise with Tenant.
14.9 Entire Agreement; Captions: Tenant acknowledges and agrees that it
has not relied upon any statement, representation, agreement or
warranty except such as may be expressly set forth in this Lease and it
is agreed by Landlord and Tenant that no amendment or modification of
this Lease shall be valid or binding unless in writing executed by
Landlord and Tenant. No provision of this Lease shall be altered,
waived, or amended or extended except in writing executed by Landlord
and Tenant. The paragraph headings contained in this Lease are for
convenience only and shall in no way enlarge or limit the scope or
meaning of the provisions of this Lease.
14.10 Severability: Each and every covenant and agreement contained in
this Lease is, and shall be construed to be, a separate and independent
covenant and agreement. If any term or provision of this Lease or the
application thereof to any person or circumstances shall to any extent
be invalid or unenforceable, the remainder of this Lease, or the
application of such term or provision to persons or circumstances other
than those as to which it is invalid or unenforceable, shall not be
affected.
14.11 Gender: Words of any gender used in this Lease shall be held and
construed to include any other gender and words in the singular number
shall be held to include the plural, unless the context otherwise
requires.
14.12 Brokerage Commissions: Tenant warrants that it has had no
dealings with any broker or agent in connection with the negotiation or
execution of this Lease and Tenant agrees to indemnify Landlord and
hold Landlord harmless from and against any and all costs, expenses
Landlord Tenant
17
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or liability for commissions or other compensation or charges claimed
by or awarded to any broker or agent with respect to this lease.
14.13 Corporate Authority: If Tenant is a corporation, Tenant warrants
that it has legal authority to operate and is authorized to do business
in the state (province) in which the Premises are situated. Tenant also
warrants that the person executing this Lease on behalf of Tenant has
authority to do so and fully obligate Tenant to all terms and
provisions of this lease. Tenant shall, upon request by Landlord,
furnish Landlord with a certified copy of resolutions of the Board of
Directors authorizing this lease and granting authority to execute it
to the person or persons who have executed it on Tenant's behalf.
N. D. Xxxxxxx Heartsoft Software Co.
/s/ N. D. Xxxxxxx /s/ Xxxxxxxx X. Xxxxx
------------------------------------ ------------------------------------
Landlord Tenant
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STATE OF OKLAHOMA )
) ss.
COUNTY OF TULSA )
CORPORATION
-----------
Before me the undersigned, a Notary Public, in and for said County and
State, on this _____ day of ____________, 200__, personally appeared
_______________________________ to me known to be the identical person___ who
subscribed the name of the maker thereof to the foregoing instrument as its
______________________ and acknowledged to me that ____ he _____ executed the
same as _____ free and voluntary act and deed and as the free and voluntary act
and deed of such corporation for the uses and purposes therein set forth.
Given under my hand and seal of office the day and year last above
written.
------------------------------------
Notary Public
My Commission Expires:
----------------------
STATE OF OKLAHOMA )
) ss.
COUNTY OF TULSA )
CORPORATION
-----------
Before me the undersigned, a Notary Public, in and for said County and
State, on this _____ day of ____________, 200__, personally appeared
_______________________________ to me known to be the identical person___ who
subscribed the name of the maker thereof to the foregoing instrument as its
______________________ and acknowledged to me that ____ he _____ executed the
same as _____ free and voluntary act and deed and as the free and voluntary act
and deed of such corporation for the uses and purposes therein set forth.
Given under my hand and seal of office the day and year last above
written.
------------------------------------
Notary Public
My Commission Expires:
----------------------
Landlord Tenant
19
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STATE OF OKLAHOMA )
) ss.
COUNTY OF TULSA )
INDIVIDUAL
----------
Before me the undersigned, a Notary Public, in and for said County and
State, on this _____ day of ____________, 200__, personally appeared
_______________________________ and _______________________________to me known
to be the identical person___ who executed the within and foregoing instrument
and acknowledged to me that ____ executed the same as _____ free and voluntary
act and deed and as the free and voluntary act and deed for the uses and
purposes therein set forth.
Given under my hand and seal of office the day and year last above
written.
------------------------------------
Notary Public
My Commission Expires:
----------------------
STATE OF OKLAHOMA )
) ss.
COUNTY OF TULSA )
INDIVIDUAL
----------
Before me the undersigned, a Notary Public, in and for said County and
State, on this _____ day of ____________, 200__, personally appeared
_______________________________ and _______________________________to me known
to be the identical person___ who executed the within and foregoing instrument
and acknowledged to me that ____ executed the same as _____ free and voluntary
act and deed and as the free and voluntary act and deed for the uses and
purposes therein set forth.
Given under my hand and seal of office the day and year last above
written.
------------------------------------
Notary Public
My Commission Expires:
----------------------
GUARANTY
This addendum to the forgoing lease dated ________________________ by
and between
Landlord Tenant
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___________________________________________________________ as Landlord and
_________________________________________________ as Tenant.
In consideration of _____________________________________________,
Landlord in the foregoing lease entering into the covenants of said lease the
undersigned hereby jointly and severally guarantee to the said
____________________________ (landlord) ________________ heirs, successors,
executor or assigns, the full, prompt and faithful payment, performance and
discharge by _______________________________________________ (tenant), the
Tenant in said lease of each of the provisions and conditions in the foregoing
lease or any other instrument given or executed in pursuance thereof.
We further jointly and severally waive all notice of default by the
Tenant in the foregoing lease and waive notice of acceptance of this Guaranty.
IN WITNESS WHEREOF, we have hereunto set our hands this _____ day of
___________.
----------------------------------
STATE OF OKLAHOMA )
) ss.
COUNTY OF TULSA )
INDIVIDUAL
----------
Before me the undersigned, a Notary Public, in and for said County and
State, on this _____ day of ____________, 200__, personally appeared
_______________________________ and _______________________________to me known
to be the identical person___ who executed the within and foregoing instrument
and acknowledged to me that ____ executed the same as _____ free and voluntary
act and deed and as the free and voluntary act and deed for the uses and
purposes therein set forth.
Given under my hand and seal of office the day and year last above
written.
------------------------------------
Notary Public
My Commission Expires:
----------------------
Landlord Tenant
21
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