EXHIBIT 10.11
LEASE AND SERVICE AGREEMENT
This Agreement is made this 8/th/ day of July, 1998, by and between ANI Dallas,
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Inc., dba ALLIANCE Business Centers ("Lessor") having offices known and numbered
as Suite 600 (the "Facility") in the building located at Madison (the
"Building") and Embedded Support Tools Corp., ("Lessee") a(n) (corporation) with
an address of 00000 X. Xxxxxx Xxxxxxx, Xxxxxx, XX 00000. The parties for
themselves, their heirs, legal representatives, successors and assigns, agree as
follows:
1. Demise and Description of Property.
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a. Lessor leases to Lessee and Lessee leases from Lessor, the "Premises"
(defined below), being a subpart of Lessors total leased Facility space, for the
term and subject to the conditions and covenants hereinafter set forth and to
all encumbrances, restrictions, zoning laws, regulations or statutes affecting
the Building, Facility or Premises.
b. The Premises consists of Facility office space number(s) 665 as shown
in the floor plan annexed hereto. Lessor hereby grants Lessee the privilege to
use in common with other lessees and parties that Lessor may designate certain
office amenities located in the Facility; the use of all of which are subject to
such reasonable rules and regulations as Lessor currently has in place and may
adopt from time to time. The amenities are more particularly described in
attached Exhibit "A." "The Operating Standards" as presently in place and
governing the use of the Premises and the Facility are attached in Exhibit "B".
2. Use.
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a. The Premises shall be used by Lessee solely for (general business use)
and such other normally incident uses and for no other purpose, in strict
accordance with the Operation Standards. Additionally, Lessee shall not offer at
the Premises any services which Lessor provides to its lessees, including, but
not limited to those amenities or services described in attached Exhibit "A". In
the event Lessee breaches any provision of this paragraph, Lessor shall be
entitled to exercise any rights or remedies available to the Lessor pursuant to
this Agreement together with such other rights and remedies as the Lessor may
otherwise have and choose to exercise.
b. Lessee shall not make nor permit to be made any use of the Premises
which would violate any of the terms of this Agreement or which, directly or
indirectly, is forbidden by statute, ordinance or government regulations, which
may be dangerous to life, limb or property, which may invalidate or increase the
premium of any policy of insurance carried on the Building or on the Facility,
which will suffer or permit the Premises to be used in any manner or anything to
be
brought into or kept there which, in the sole judgment of Lessor, shall in any
way impair or tend to impair the high quality character, reputation or
appearance of the Building or the Facility, or which may or tend to impair or
interfere with any services performed by Lessor for Lessee or for others.
3. Term.
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a. The term of this Agreement shall be for a period of 6 months,
commencing 9:00 a.m. on the 15th day of July, 1998, and ending 5:00 p.m. on the
15th day of January, 1999, unless renewed as provided in paragraph "3(b)"
herein.
b. Upon the ending term date set forth herein or any extension thereof,
the Agreement shall be extended for the same period of time as the initial term
and upon the same terms and conditions as herein contained except for the amount
of base rental charges, which shall each be increased by seven percent (7%),
unless either party notifies the other in writing by certified or registered
mail, return receipt requested, or delivered by hand that the Agreement shall
not be extended within the period hereinafter specified or automatically
renewed. If Lessee has less than three offices, such notice shall be given at
least 60 days prior to the expiration date of this Agreement. If Lessee has
three or more offices, such notice shall be given at least 90 days prior to the
expiration date of this Agreement.
c. In the event the entire Premises or the Facility are damaged, destroyed
or taken by eminent domain or acquired by private purchase in lieu of eminent
domain so as to render the Premises fully untenantable and unrestorable in
Lessor's sole judgment, then within 90 days thereafter by written notice to the
other party, either party shall be able to terminate this Agreement, which will
terminate as of the date thereof.
4. Rent.
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a. For and during the term of this Agreement, Lessee shall pay Lessor as
rent for the Premises a total semi-annual rental of $4,410, payable in equal
monthly installments of $735, each payable in advance of the first day of each
calendar month after the commencement of the term, or a daily prorated amount
for any partial calendar month during the term. If any payment of rent or other
charges due under this Agreement is not received within five (5) calendar days
after its due date, the Lessee will also pay, as additional rent, a late payment
charge which shall be an amount equal to 10% of any amount owed to Lessor or $50
whichever is greater.
b. It is additionally specifically covenanted and agreed that the
financial terms of this Agreement are strictly confidential and Lessee agrees
not to knowingly or willfully divulge this information to any other Lessee or
potential Lessee of Lessor. Any such disclosure by the Lessee of the financial
terms of this Agreement as set forth herein above, shall constitute a material
breach of this Lease.
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c. The first such payment of rental as well as the payment of the Deposit
as set forth in below shall be paid by Lessee simultaneously with execution of
this Agreement. Should the Lessee fail to make such payment prior to die
commencement of the term of this Agreement, then, at Lessor's sole option, the
Agreement shall be null and void and of no further effect.
d. The rental payable during the term of this Agreement shall be increased
oil the first day of the month following notification of any rental increase
(however designated) which the Lessor might receive from (the Lessor's over-
landlord ("Building"). The term " direct expenses" as used herein shall refer to
the same items and costs is are used by the Building in its determination of
expenses and costs passed on to Lessor. Lessor shall immediately notify Lessee
in writing of any such increase, and shall xxxx Lessee for its pro rata share
thereof, which xxxx Lessee shall pay promptly upon such notification for each
and every month thereafter for the balance of the term.
e. Rent charges are based on the value of the rental Premises and services
to be used by 1 person(s) only. If more than said number of person(s) habitually
use the Premises or services, the Fixed Monthly Rental Charges will be increased
by a factor of $150 for each additional person who habitually uses the Premises.
f. If a Lessee check is returned for any reason, Lessee will pay an
additional charge of $100.00 per returned check and, for the purpose of
considering default and/or late charges, it will be as if the payment
represented by the returned check had never been made.
5. Security Deposit.
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a. Lessee shall deposit with Lessor $735, or the equivalent of one months
rent, in good or certified funds, as a non-interest bearing security deposit.
Lessor may use the security deposit to cure any default of Lessee under this
Agreement, restore the Premises including any and all furniture, fixtures and
equipment provided by Lessor and vendors at the Premises to their original
condition and configuration, reasonable wear and tear excepted, to pay for
repairs to any damage to the Premises, Executive Suite or Building, caused by
Lessee or Lessee's guests, to pay any rent or other charges which Lessee owes
Lessor at or prior to the expiration of this Agreement, and to reimburse Lessor
for costs or expenses arising from any other obligation of Lessee which Lessee
has failed to perform. If Lessor transfers control or ownership of the Premises
and Lessor transfers the security deposit to such purchaser, Lessee will look
solely to the new Lessor for the return of the security deposit, and the Lessor
named in this Agreement shall be released from all liability for the return of
the security deposit.
b. The security deposit (less any sums used by Lessor in accordance with
the terms and conditions of this Agreement) will be returned within sixty (60)
days after the termination of any services
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rendered or expiration of the term hereof. The security deposit shall not under
any circumstance be applied in lieu of the final payment(s) of Fixed Monthly
Rental charges or service charges under this Agreement.
c. In the event that, by reason of the Lessee's default in its obligations
pursuant to this Agreement or otherwise, including but not limited to the
payment of the Fixed Monthly Rental Charge, any amounts due by reason of the
Lessee's use of additional services hereto and/or by reason of the Lessee's use
of telephone services as supplied pursuant to this Agreement, Lessor shall be
entitled to apply any of the security deposits pursuant to this Agreement to any
outstanding sums due or owing to the Lessor, and Lessor shall have the right to
charge the Lessee, as additional rent, such sums as are necessary to replenish
any and all amounts applied so as to cause the security to be returned to its
entire amount. The failure to pay such amounts as are necessary to replenish the
security shall be considered a breach of this Agreement and shall entitle the
Lessor to exercise any of its rights pursuant to this Agreement or otherwise.
6. Delivery of Possession.
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If, for any reason whatsoever, Lessor cannot deliver possession of the
Premises to Lessee at the commencement of the term, this Agreement shall not be
void nor voidable nor shall Lessor be liable to Lessee for any loss or damage
resulting therefrom; but there shall be an abatement of rent for the period
between the stated term commencement and the time when Lessor does deliver
possession of the Premises.
7. Services.
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a. So long as Lessee is not in default hereunder, Lessor shall make
available certain amenities to Lessee as more particularly described in Exhibit
"A." Such services shall be offered to Lessee, in conjunction with such
services being offered by Lessor to its other lessees, without charge for the
reasonable use of the same.
b. In addition, provided Lessee is not in default hereunder and provided
the cost thereof does not exceed the Security Deposit, Lessor shall make
available to Lessee certain other services the cost of which shall be billed to
the Lessee as additional rent and the payment of which shall be subject to the
same terms and conditions as those governing the payment of the Fixed Monthly
Rental Charge herein regardless of when such charges are billed to the Lessee.
8. Telephone Services.
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a. Provided Lessee is not in default of any of the terms, covenants,
conditions or provisions of this Agreement, Lessor will make available to Lessee
a telecommunications package, for an additional fee, which will consist of some
combination of telephone equipment, numbers, lines, conference calling, voice
mail, local, long distance and international service, and directory listing.
All
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components of the telecommunications package including any telephone numbers
used by Lessee will remain at all times the property of Lessor and Lessee will
acquire no rights in the components beyond the term specified by Lessor.
b. Upon Lessee's written request, Lessee shall be entitled to appoint
Lessor as its exclusive agent for the sole purpose of procuring and arranging
Lessees local "white pages" listings. Lessor shall have no involvement nor
responsibility for any "yellow pages" listings desired by Lessee.
x. Xxxxxx shall not be liable for any interruption or error in the
performance of its services to Lessee under this Section. Lessee waives any
recourse against the Lessor for any claimed liability arising from the provision
of telecommunication services including, but not limited to; injuries to persons
or property arising out of mistakes, omissions, interruptions, delays, errors or
defects in transmissions occurring in the course of furnishing
telecommunications services provided same are not caused by the willful acts of
the Lessor, as well any claim for business interruption and for consequential
damages.
x. Xxxxxx shall use reasonable efforts to provide Telephone Services to
Lessee in a first-class, professional manner. Telephone service charges shall be
as per Lessor's then scheduled rates for the same, or as the same may be amended
by Lessor from time to time.
e. In the event that any toll fraud is traceable to telecommunications
services employed by Lessee, such toll fraud shall be deemed to be a material
default in the Lessee's obligations hereunder. Lessee further hereby agrees to
indemnify, hold harmless and to reimburse Lessor for all charges associated with
any such toll fraud including, but not limited to, unauthorized use of calling
cards or telephone lines.
f. It is expressly acknowledged and agreed that Lessor shall be the sole
and exclusive provider of telecommunication services to Lessee, Lessee hereby
agrees and covenants that it will not use any other telephone service or
telephone carrier to provide it service in the Premises. In the event that
Lessee uses or acquires any other telephone service at the Premises, such use
and/or installation shall constitute a material default in the Lessee's
obligations hereunder.
9. [Intentionally Omitted]
10. Insurance: Waiver of Claims.
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a. Lessor has no obligation to and will not carry insurance for Lessee's
benefit. Lessor will not be liable to Lessee or to any other person for damages
on account of loss, damage or theft, to any business or personal property of
Lessee. Lessee hereby waives any claims against Lessor from any loss, cost,
liability, or expense (including reasonable attorneys' fees) arising from
Lessee's
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use of the Premises or any common areas made available to Lessee by Lessor or
from the conduct of Lessee's business, or from any activity, work, or thing done
in the Premises or common areas by Lessee or Lessee's agents, contractors,
visitors or employees. To the extent that Lessor has any liability for any of
the foregoing pursuant to any law, ordinance or statute, Lessee shall seek
recovery for such loss(es)/or damage(s) from its own insurance company as
provided for in subparagraph (c) herein prior to making any claims against
Lessor.
b. The Lessor shall not be liable or responsible to the Lessee for any
injury or damage resulting from the acts or omissions of Lessor, its employees,
persons leasing office space or obtaining services from the Lessor, or other
persons occupying any part of the Premises or Building, or for any failure of
services provided such as water, gas or electricity, HVAC or for any injury or
damage to person or properly caused by any person except for such loss or damage
arising from the willful or grossly negligent misconduct of the Lessor, its
agents, servants, or employees or from the Lessor's failure to make repairs
which it is obligated to make hereunder. Neither Lessor or any of its agents,
employees, officers or directors shall be responsible for damages resulting from
any error, omission or defect in any work performed or provided as part of the
services rendered, whether uncompensated services or compensated services.
c. Lessee shall provide Lessor with a certificate of insurance evidencing
General/Public Liability coverage with liability limits of not less than One
Million Dollars ($1,000,000) per occurrence for Bodily Injury and/or Property
Damage Liability and One Hundred Thousand Dollars ($100,000) per occurrence for
Fire/Legal Liability. Said insurance coverage shall remain in force during the
term of this Agreement and renewals thereof. The Lessor, Alliance National,
Inc., and Alliance Business Centers, Inc. shall be named as an additional named
insured on each of these policies. Lessee's failure to provide or maintain such
insurance shall not reduce or otherwise alter Lessee's liability or
responsibility to pay any judgment rendered against Lessee for such Liability
and Damages. Failure to maintain such insurance and/or to name the Lessor and
its designees, as set forth above, shall constitute a material breach of this
Agreement.
d. Both parties hereby agree to defend, indemnify and hold the other
harmless from and against any and all claims, damages, injury, loss and expenses
to or of any person or property resulting from the acts or negligence of their
agents, employees, invitees and/or licensees while in the Building, Executive
Suite and/or Premises.
e. Any fire and extended risk casualty insurance that Lessee maintains
shall include a waiver of subrogation in favor of Lessor and Building Landlord,
and any fire and extended risk insurance carried on the
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Facility by Lessor shall likewise contain a waiver of subrogation in favor of
Lessee.
11. Waiver of Breach.
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Should Lessor not insist upon the strict performance of any term or
condition of this Agreement or to exercise any right or remedy available for a
breach thereof, no acceptance of full or partial payment during the continuance
of any such breach shall constitute a waiver of any such breach or any such term
or condition. No term or condition of this Agreement required to be performed by
Lessee and no breach thereof, shall be waived, altered or modified, except by a
written instrument executed by Lessor. No waiver of any breach shall affect or
alter any term or condition in this Agreement, and each term or condition shall
continue in full force and effect with respect to any other then existing or
subsequent breach thereof.
12. Operating Standards.
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The Operating Standards attached to this Agreement as Exhibit "B" are
hereby made an integral part of this Agreement. Lessee, its employees, agents,
guests, invitees, visitors and/or any other persons caused to be present in and
around the Premises by the Lessee shall perform and abide by the rules and
regulations and any amendments or additions to said rules and regulations as
Lessor may make. In addition, Lessee, its employees and agents shall abide by
all applicable governmental rules, regulations, statutes and ordinances relating
in any way to the Premises or the Facility or Lessee's use or occupancy of the
Premises or the Facility; failing which Lessee shall be in default hereunder and
shall pay any fines or penalties imposed for such violation(s) directly to the
appropriate governmental authority or to Lessor, if Lessor has paid such amount
on behalf of Lessee. Such remedy shall not be exclusive. It is hereby further
explicitly agreed and understood that full compliance with the Operating
Standards as set forth constitutes a material obligation of this Agreement, and
that the failure to so comply shall constitute a violation of this Agreement
entitling the Lessor to exercise any of its remedies pursuant to this Agreement
or otherwise.
13. Employment of Lessor's Employees.
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a. Lessee agrees that it will not, during the term of this Agreement and
any renewals thereof, or for a period of one year after the expiration or sooner
termination of this Agreement, hire or issue an offer to employ any person who
is or has been an employee of Lessor or Lessor's agent without prior consent
from Lessor. If Lessee either hires an employee of Lessor or Lessor's agent; or
hires any person who has been an employee of Lessor or its agent within six
months prior to the time they are hired by Lessee, Lessee will, at Lessors sole
option, be liable to Lessor for liquidated damages equal to six months wages of
the employee, at the rate last paid that employee by Lessor.
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b. If Lessor assists in hiring an employee for Lessee, Lessee shall pay to
the Lessor a commission equal to 20% of that employee's annual salary. The
provisions hereof shall survive the expiration or sooner termination of the term
thereof.
14. Alteration.
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If Lessee requires any special wiring or office alterations for
extraordinary business machines or other purposes not consistent with the
current wiring, extraordinary telephone equipment or computer equipment, such
alteration shall be done (i) only with the express written permission of the
Lessor, and if said permission is granted, then (ii) by an agent designated by
Lessor at Lessee's cost. The electrical current shall be used for ordinary
lighting purposes only, unless written permission to do otherwise shall first
have been obtained from Lessor at an agreed cost to Lessee. Lessor further
reserves (lie sole and exclusive right to limit the number and type of lines and
telephone equipment Lessee call install in the leased Premises.
15. Re-Entry.
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Lessor and its agents shall have the right to enter the Premises at any
time for the purpose of making any repairs, alterations, inspections which it
shall deem necessary for the preservation, safety or improvements of said
Premises, without in any way being deemed or held to have committed an eviction
(constructive or otherwise) of or trespass against Lessee.
16. Relocation.
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a. Lessee agrees that the Lessor may, in its sole discretion, relocate the
Lessee from its present Premises to a like or similar office space within the
same facility upon ten (10) days notice to the Lessee. In the event that the
Lessor requires the Lessee to relocate, the Lessor hereby agrees to bear the
reasonable cost of any such relocation, which cost shall be limited to the cost
associated with the physical transfer of the Lessee's property to any different
office which the Lessor may designate.
b. In the event that any such relocation is effected, the Lessee hereby
acknowledges that, unless otherwise agreed in writing, that all of the terms and
conditions of this Agreement shall remain in full force and effect.
17. Assignment and Subletting.
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No assignment or subletting of the Premises, this Agreement or any part
thereof shall be made by Lessee without Lessor's prior written consent, which
consent may be withheld for any or no reason in Lessor's sole discretion.
Neither all nor any part of Lessee's interest in the Premises or this Agreement
shall be encumbered, assigned or transferred, in whole or in part, either by act
of the Lessee or by operation of law.
18. Surrender.
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a. On expiration of the term, any extended term, or sooner
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termination of this Agreement, Lessee shall promptly surrender and deliver the
Premises to Lessor, without demand, and in as good condition as when let,
ordinary wear and tear excepted.
b. Upon Lessee serving a notice of cancellation as provided in 3b herein
Lessor shall have the right to show Lessee's Premises during the 60 day period
(for one or two offices) or 90 day period (for three or more offices) as the
case may be.
c. Without prior written approval of Lessor, Lessee shall not move any of
its property from the Premises upon termination of this Agreement or at any
other time, except during Lessor's normal business hours. In the event Lessor
consents to Lessee's removing property before or after normal business hours,
any expenses incurred by Lessor as a result, including but not limited to
expenses for personnel, security, elevator, utilities and the like shall be paid
by Lessee in advance, to the extent determinable by Lessor, by certified and/or
bank check.
d. If Lessee vacates the Premises and leaves behind any property,
whatsoever, same will be deemed abandoned by Lessee and may be disposed of by
Lessor at Lessee's expense. If Lessee defaults in the payment of sums due to
Lessor, and Lessor changes the locks, removes Lessee's property, or otherwise
denies access to Lessee, Lessor shall not be liable for conversion or partial,
actual and/or constructive eviction.
19. Holding Over.
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a. In the event that Lessee should not renew this Agreement in accordance
with the terms and conditions hereof, and/or fail to surrender the Premises upon
the expiration of the term of the Agreement as provided herein, Lessee agrees to
pay Lessor, as liquidated damages, a sum equal to twice the monthly rent and all
additional charges for services provided by Lessor to Lessee, for each month
that Lessee retains possession of the Premises or any part thereof, provided,
however, that the acceptance of such sums, representing liquidated damages shall
not be deemed to be permission to Lessee to continue in possession of the
Premises.
20. Default and Remedies.
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a. If the Lessee shall default in fulfilling any of its terms, conditions,
covenants or provisions of this Agreement, including but not limited to:
1. Payment of fixed Monthly Rental Charges and/or any other charges
hereunder within ten days of the date such charges become due;
2. Becomes insolvent, makes an assignment for benefit of creditors, or
files a voluntary petition under any bankruptcy or insolvency law, or has filed
against it an involuntary petition under any such law;
3. Defaults in fulfilling any of the terms, conditions, covenants or
provisions of this Agreement including
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but not limited to the breach of any of the terms and conditions set forth in
the exhibits attached hereto;
4. The abandonment and/or vacatur of the Premises by the Lessee; then,
after five days notice of any such default(s), the Lessor may, at its sole
discretion, terminate this Agreement upon five days notice to the Lessee, and
upon the expiration of such notice period, the Lessee shall quit and surrender
the Premises to the Lessor. In the event that the Lessee fails to quit and
surrender the Premises, the Lessor may reenter and take possession of the
Premises and remove all persons and property therefrom, as well as disconnect
any telephone lines installed for the benefit of Lessee, without any liability
whatsoever to Lessee. In addition, Lessor may elect concurrently or alternately
to accelerate all of Lessee's obligations hereunder including without limitation
the rental, direct expenses, Schedule B Costs, and Telephone Services costs,
and/or the re-letting of the Premises or any part thereof, for all or any part
of the remainder of said term, to a party satisfactory to Lessor, at any monthly
rental rate. Lessor, in its sole discretion, shall have no obligation, implied
or otherwise, to mitigate its damage(s) under such circumstances.
b. Should Lessor be unable to re-let the Premises, or should each monthly
re-rental be less than the rental, Lessee is obligated to pay under this
Agreement or any renewal thereof, and at Lessor's option Lessee shall pay the
amount of such deficiency, plus the expenses of relating, immediately in one
lump sum (if allowable under law) to Lessor upon demand and/or as such
obligations accrue.
c. If Lessee shall default in the observance or performance of any term or
covenant on Lessee's part to be observed or performed under or by virtue of any
of the terms or provisions in any article of this lease, then, unless otherwise
provided elsewhere in this lease, Lessor may immediately or at any time
thereafter and with notice perform the obligation of Lessee thereunder, and if
Lessor, in connection therewith or in connection with any default by Lessee in
the covenant to pay rent hereunder, makes any expenditures or incurs any
obligations for the payment of money, including but not limited to attorney's
fees, in instituting, prosecuting or defending any actions or proceeding, such
sums so paid or obligations incurred with interest and costs shall be deemed to
be additional rent hereunder and shall be paid by Lessee to Lessor rendition of
any xxxx or statement to Lessee therefor, and if Lessee's lease term shall have
expired at the time of making of such expenditures or incurring of such
obligations, such sums shall be recoverable by Lessor as damages.
21. Mail & Telephone Forwarding.
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a. After termination or expiration of the term of this Agreement, Lessee
hereby agrees that it will take all reasonable steps to notify all parties of
Lessee's new address and phone numbers. Lessor
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shall have no obligation to notify any person or entity of Lessee's new address
and/or phone numbers, except as expressly provided herein.
x. Xxxxxx will, unless otherwise instructed by Lessee in writing, forward
mail to Lessee at its new address and give out new telephone number via a voice
mail message for a period of three (3) months at the rate of $TBD per month,
which sums shall be deducted from any amounts deposited with the Lessor as
security hereunder and paid to the Lessor in advance. In the event that there is
not sufficient security remaining on deposit to pay for the charges set forth
herein, unless the Lessee shall pay the charges set forth herein to the Lessor
in advance, Lessor shall have no obligation to provide the services set forth
herein.
22. Notices.
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Any notice under this Agreement shall be in writing and shall be either
delivered by hand or by first class mail to the party at the address set forth
below. Lessor hereby designates its address as:
ALLIANCE BUSINESS CENTERS
Madison Building (center address)
00000 X. Xxxxxx Xxxxxxx Xxxxx 000
Xxxxxx, XX 00000
Attn: Management
with a copy by regular first class mail to:
ALLIANCE Business Centers
000 Xxxx 00xx Xx., Xxx. 0000
Xxx Xxxx, XX 00000
Attn: Legal Department
Lessee hereby designates its address (which address must be an address within
the United States), as
Embedded Support Tools Corp.
Attn: _______________
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
If such mail is properly addressed and mailed as above, it shall be deemed
notice for all purposes, given when sent or delivered, even if returned as
undelivered.
23. Landlord's Election Under This Agreement.
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Upon early termination of the main Building lease, this Agreement shall
terminate unless the Building Landlord under the main lease elects to have this
Agreement assigned to the Building Landlord or another entity as provided in the
main lease. Upon notice to Lessor of the termination of the main lease and such
election, (i) the Agreement shall be deemed to have been assigned by Lessor to
the Building Landlord or to such other entity as is designated in such notice by
the Building Landlord, (ii) the Building Landlord shall be deemed to be the
Lessor under this Agreement and shall assume all rights and responsibilities of
Lessor ` under this Agreement, and (iii) Lessee shall be deemed to have attorned
to the Building Landlord as Lessor under this Agreement.
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24. Time of Essence.
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Time is of the essence as to the performance by Lessee of all covenants,
terms and provisions of this Agreement.
25. Severability.
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The invalidity of any one or more of the sections, subsections, sentences,
clauses or words contained in this Agreement or the application thereof to any
particular set of circumstances, shall not affect the validity of the remaining
portions of this Agreement or of their valid application to any other set of
circumstances. All of said sections, subsections, sentences, clauses and words
are inserted conditionally on being valid in law; and in the event that one or
more of the sections, subsections, sentences, clauses or words contained herein
shall be deemed invalid, this Agreement shall be construed as if such invalid
sections, subsections, sentences, clauses or words had not been inserted. In the
event that any part of this Agreement shall be held to be unenforceable or
invalid, the remaining parts of this Agreement shall nevertheless continue to be
valid and enforceable as though the invalid portions had not been a part hereof.
In addition, the parties acknowledge (i) that this Agreement has been fully
negotiated by and between the parties in good faith and is the result of the
joint efforts of both parties, (ii) that both parties have been provided with
the opportunity to consult with legal counsel regarding its terms, conditions
and provisions and (iii) that regardless of whether or not either party has
elected to consult with legal counsel, it is the intent of the parties that in
no event shall the terms, conditions or provisions of this Agreement be
construed against either party as the drafter of this Agreement.
26. Execution by Lessee.
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The party or parties executing this Agreement on behalf of the Lessee
warrant(s) and represent(s): (i) that such executing party (or parties) has (or
have) complete and full authority to execute this Agreement on behalf of Lessee;
(ii) that Lessee shall fully perform its obligations hereunder.
27. Assumption Agreements and Covenants.
-----------------------------------
This Agreement is subject and subordinate to the main Building lease
governing the Facility, under which Lessor is bound as tenant; and the
provisions of the main lease, other than as to the payment of rent or other
monies, are incorporated into this Agreement as if completely herein rewritten.
Lessee shall comply with and be bound by all provisions of the main lease except
that the payment of rent shall be governed by the provisions of this Agreement,
and Lessee shall indemnify and hold Lessor harmless from and against any claim
or liability under the main lease of Lessor arising from Lessee's breach of the
Main Lease or this Agreement. Lessor covenants and warrants that the use of the
Premises as a business office is consistent with and does not violate the terms
of the main lease.
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28. Covenant and Conditions.
-----------------------
Each term, provision and obligation of this Agreement to be performed by
Lessee shall be construed as both a covenant and condition.
29. Entire Agreement.
----------------
This Agreement embodies the entire understandings between the parties
relative to its subject matter, and shall not be modified, changed or altered in
any respect except in writing signed by all panics.
30. Counterparts.
------------
This Agreement may be executed in two or more counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Agreement as of
the date first above written.
LESSOR: ANI Dallas, Inc., dba Alliance Business Centers
By: /s/ Xxxxxxx Xxxxx
-------------------------
Title: General Manager
-------------------------
LESSEE: Embedded Support Tools Corp.
(If a corporation)
By: /s/Xxxx Xxxxxxx
-------------------------
Title: Vice President
-------------------------
[Corporate Seal)
LESSEE:
(If an individual or partnership)
By: _________________________
By: _________________________
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EXHIBIT "A"
. Furnished, Decorated Reception . Receipt of Mail and Packages
Room with Professional Receptionist
. Personalized Telephone Answering . Complete Kitchen Facilities
During Office Hours with Coffee Machine
. 24 hour Voicemail (1 at $25+tax/mo) . Utilities and Maintenance
. Unlimited hours of Conference Room . HVAC During Normal Business
or private furnished offices, subject Hours
to prior scheduling and use by other . Janitorial Services
lessees . 8 hours per month courtesy use
. Corporate Identity on Lobby of other ALLIANCE Business
Directory where Available (for an Centers affiliated facilities.
additional fee) Locations subject to current
. Nameplate (1 at $25+tax) affiliation and availability
. Complete Mail Room Facility
EXHIBIT "B" OPERATING STANDARDS
--------------------------------------------
1. Lessees and their guests will conduct themselves in a businesslike manner;
proper attire will be worn at all times; and the noise level will be kept
to a level so as not to interfere with or annoy other Lessees.
2. Lessee shall not provide or offer to provide any services to Lessor's
customers if such services are available from Lessor.
3. Lessee will not affix anything to the walls of the Premises without the
prior written consent of the Lessor.
4. Lessee will not prop open any corridor doors, exit doors or doors
connecting corridors during or after business hours.
5. Lessees using public areas may only do so with the consent of the Lessor,
and those areas must be kept neat and attractive at all times.
6. Lessee will not conduct any activity within the Premises, Executive Suite
or Building which in the sole judgment of the Landlord will create
excessive traffic or is inappropriate to the executive office suite
environment.
7. Lessee may not conduct business in the corridors or any other areas except
in its designated offices or conference rooms without the written consent
of Lessor.
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8. All corridors, halls, elevators and stairways shall not be obstructed by
Lessee or used for any purpose other than normal egress and ingress.
9. No advertisement, identifying signs or other notices shall be inscribed,
painted or affixed on any part of the corridors, doors, or public areas.
10. Without Lessor's specific prior written permission, Lessee is not permitted
to place "mass market", direct mail or advertising (i.e. newspaper,
classified advertisements, yellow pages, billboards) using Lessor's
assigned telephone number or take any such action that would generate a
excessive amount of incoming calls.
11. Lessee shall not solicit clients of Lessor or and their employees in the
Building without first obtaining Lessor's prior written approval.
12. Immediately following Lessee's use of conference room space and/or
audio/visual equipment, Lessee shall clean up and return the space and
equipment to the state and condition it was in prior to Lessee's use. If
not, Lessor may charge Lessee for any other expenses required to restore
the conference space and/or equipment to its original condition.
13. Lessor must be notified in writing if Lessee desires to utilize the
conference room or other common areas of the Executive Suite during evening
or weekend hours. Lessor may deny the Lessee access if the desired usage is
inappropriate and may disrupt normal operations.
14. Lessee shall not, without Lessor's written consent, store or operate any
computer (except a desktop/laptop computer) or any other large business
machines, reproduction equipment, heating equipment, stove, speaker phones,
radios, stereo equipment or other mechanical amplification equipment,
refrigerator or coffee equipment, or conduct a mechanical business, do any
cooking, or use or allow to be used on the Premises oil, burning fluids,
gasoline, kerosene for heating, warming or lighting. If Lessee chooses to
maintain a private fax machine in their office, there will be an additional
satisfy fee of $100 billed to Lessee each month. No article deemed extra
hazardous on account of fire or any explosives shall be brought into said
Premises or Facility. No offensive gases, odors on liquids shall be
permitted.
15. Lessee will bring no animals into the Premises or Facility except for those
assisting disabled individuals.
16. Lessee shall not remove furniture, fixtures or decorative material from
offices or common areas without the written consent of Lessor.
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17. Lessee shall not make any additional copies of any Lessor issued keys. All
keys and security cards are the property of Lessor and must be returned
upon request or by the close of the business on the expiration or sooner
termination of the Agreement term. Any lost or unreturned keys or cards
shall incur a $25.00 per item charge and the cost to re-key the office.
18. Lessee shall not smoke nor allow smoking in any area of the Facility,
including the Premises, and shall comply with all governmental regulations
and ordinances concerning smoking.
19. Lessee shall not allow more than three visitors in the reception lobby of
the Premises at any one time.
20. Lessee's parking rights (if any) are defined by Lessor's Agreement with the
owner of the Building. Landlord reserves the right to modify parking
arrangements if required to do so by Building management.
21. Lessee shall cooperate and be courteous with all other occupants of the
Facility and Lessor's staff and personnel.
22. Lessor reserves the right to make such other reasonable rules and
regulations as in its judgment may from time to time be needed for the
safety, care, appropriate operation and cleanliness of the Facility.
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LEASE AND SERVICE AGREEMENT
EXTENSION RIDER
RE: Lease and Service Agreement between ALLIANCE Business Centers, a New
York corporation and EST dated July 8, 1998.
DATE: December 30, 1998
CENTER: 00000 X. Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Paragraph "3a" of the Agreement is hereby modified so that the term of the
Agreement shall expire on July 31, 1999.
In consideration of this modification and extension of the term, the Lessee
shall pay the Lessor as rent for the Premises a total rent of $5,154.00, payable
in equal monthly installments of $787.00.
All other terms and conditions of the Agreement shall remain in full force and
effect.
ACCEPTED BY LESSOR: ACCEPTED BY LESSEE:
ALLIANCE BUSINESS CENTERS, a EST
New York corporation
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxxx Xxxxxxx
---------------------- ----------------------
Print Print
Name: Xxxxxxxx Xxxxx Name: Xxxx Xxxxxxx
---------------------- ----------------------
Title: Area General Manager Title: V.P.
---------------------- ----------------------
Date: 1/21/99 Date: 1/6/99
---------------------- ----------------------
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