LEASE AGREEMENT
THIS LEASE AGREEMENT dated this 23rd day of January, 1995, by
and between Family Funds Partnership, hereinafter called "LESSOR", and
MultiMedia Access Corporation, hereinafter called "LESSEE".
WITNESSETH:
The Lessor hereby leases to the Lessee and the Lessee hereby leases
from the Lessor the following described property: Being all of that certain
space consisting of approximately 0000 xxxxxx xxxx xx xxxxx xxxx and located on
the 1st floor of the office building located at 0000 X.X. Xxxxxxx Xxxx, Xxxx,
Xxxx Xxxxxx, Xxxxx Xxxxxxxx. The area being leased is specifically identified as
Suite Number 110 and shown on a floor plan entitled Exhibit A and attached
hereto and by reference made a part hereof.
I. TERM
Lessee to have and to hold the above described premises for a term of
three (3) year(s) commencing on the first calendar day of March 1995, or as soon
thereafter as possession is surrendered by the existing occupant, and fully
ending at midnight on the last calendar day of February 1998, on the terms and
conditions as set forth herein. In the event possession of said space is
delivered after the date set forth above, then this lease will expire on the
last day of the calendar month in which possession was delivered, three (3)
year(s) later. All parties agree that in matters pertaining to this agreement
that time is of the essence and except in accordance with the provisions
contained herein, this lease shall not be canceled, abridged, abated, revoked,
rescinded or denied.
II. USE AND POSSESSION
It is understood and agreed that the leased premises are to be used as
an office facility for the Lessee to conduct such activities as is commonly
consistent with Lessee's business. Lessee agrees not to use the leased premises
for any unlawful purpose or so as to constitute a nuisance, or in such a manner
as to be offensive to general office use in the remainder of the building. The
Lessee at the expiration of the term shall deliver up the leased premises in
good order, repair and condition, damages beyond the control of the Lessee,
reasonable use, ordinary decay, wear and tear excepted.
III. PARKING
The Lessor shall, when available, provide on-site parking for Lessee,
Lessee's employees, guests and invitees without additional charge therefor.
On-site parking, when available, shall be provided on a first-come, first-serve
basis and no parking spaces shall be considered as exclusively reserved for
Lessee, his employees, guests or invitees except that if Lessor shall designate
certain available parking spaces for guests or visitors to the building, or for
handicapped persons, then Lessee shall not use these parking spaces for his
personal automobile, nor shall Lessee allow any employees of Lessee to use these
parking spaces unless said employee is handicapped.
IV. RENT
The Lessee hereby covenants and agrees to pay during the term hereof to
the Lessor in advance and without deduction therefrom or demand therefor and
beginning upon the commencement day of this lease and on the first day of each
and every month thereafter an annual rent of Thirty-eight Thousand Three Hundred
Thirty-Three and 64/100 ($38,333.64) which shall be paid in equal monthly
installments of Three Thousand One
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Hundred Ninety-Four and 47/100 ($3,194.47). The first such installment being due
and payable upon the effective date of this lease and all future installments on
the first calendar day of each month in advance.
Further, the Lessee shall, during the term of the lease, reimburse the
Lessor for any and all renovation cost made to Lessee's leased space, which cost
is in excess of Eighteen Thousand Dollars ($18,000.00). The total of such excess
cost shall be determined upon the completion of construction and certified to by
the contractor and sub-contractors involved. Such excess cost shall bear
interest at the rate of nine percent (9%) per annum and be paid back to Lessor
in thirty-six (36) equal monthly installments concurrent with the rent payment.
Provided, however, that such excess cost shall not exceed Eighteen Thousand
Dollars ($ 1 S,000). Upon the completion of construction the Lessor or Lessor's
agent shall calculate the total cost to renovate Lessee's space. Lessor shall
subtract from the total cost the allowance herein staled and shall compute the
monthly payment on the amount in excess of the allowance. The Lessor shall
notify Lessee of this amount and of the monthly payment required to amortize
this amount.
(See Addendum attached)
Rent shall be paid to the Lessor at:
Equity and Investors Management Corporation
Xxxx Xxxxxx Xxx 00000
Xxxxxxx, Xxxxx Xxxxxxxx
V. ADDITIONAL RENT
After January 1st of each year during the term hereof the Lessor shall
compute his operating expenses for the preceding calendar year, as said
operating expenses relate to the building in which the leased space is located.
If these operating expenses shall exceed the operating expenses of the property
for the base year, then the Lessee shall within thirty (30) days after receiving
notice from Lessor, pay to Lessor, Lessee's pro rata share of any such
increases. Lessee's pro rata share of any increased operating expenses shall be
a sum equal to the total amount of increased operating expenses multiplied by
2783 square feet/13,633 square feet. It is agreed and understood that in the
event Lessee should not have been in possession of the Lessee's premises for the
entire year, then Lessee will only be liable for the same portion of such nun as
the time of his occupancy bears to the total y ear. It is further agreed and
understood that the base year as referenced in this section shall be that twelve
month period ending December 31, 1995.
For the purpose of this paragraph, the term "operating expenses" shall
include the following: Maintenance labor and materials, utilities, real estate
taxes, personal property taxes, building insurance and management fees.
Specifically excluded from this definition are leasing fees, legal fees, new
office fit up cost and administrative supplies and forms. In no event shall the
additional rent referenced in this section exceed six percent (6%) of the base
rent times the number of years lapsed on the lease.
VI. DEFAULT
In the event the Lessee shall default in the payment of rent or any
other nuns payable by the Lessee herein, and such default shall continue for a
period of ten (10) days after written notice by Lessor, delivered via certified
mail, or if the Lessee shall default in the performance of any other covenant or
agreements of this lease and such default shall continue for thirty (30) days
after written notice thereof, or if the Lessee should become bankrupt or
insolvent, file for reorganization wider any bankruptcy law, or any material
debtor proceedings be taken by or against the Lessee, then and in addition to
any and all other legal remedies and rights, the Lessor may declare the entire
balance of the rent for the remainder of the term to be due and payable and may
collect the same by distress or otherwise and Lessor shall have a lien on the
personal property of the Lessee which is located in the leased premises, and in
order to protect its security interest in the said property, Lessor may, after
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first obtaining a distress warrant, lock up the leased premises in order to
protect said interest in the secured property, or the Lessor may terminate this
lease and retake possession of the leased premises, or enter the leased premises
and re-let the same without termination, in which latter event the Lessee
covenants and agrees to pay any deficiency after Lessee is credited with the
rent thereby obtained less all repairs and expenses (including the expenses of
obtaining possession), or the Lessor may resort to any two or more of such
remedies or rights, and adoption of one or more such remedies or rights shall
not necessarily prevent the enforcement of others concurrently or thereafter.
The Lessee also covenants and agrees to pay reasonable attorney's fees and costs
and expenses of the Lessor, including court costs, if the Lessor employs an
attorney to collect rent or enforce other rights of the Lessor herein. In the
event of any breach as aforesaid the same shall be payable if collection or
enforcement is effected by suit or otherwise.
VII. NOTICES
For the purpose of notice or demand, the respective parties shall be
served by certified or registered mail, receipt requested, addressed to the
Lessee or to the Lessor at the following addresses:
If to Lessor: Family Funds Partnership
c/o Equity and Investors Management Corporation
Xxxx Xxxxxx Xxx 00000
Xxxxxxx, X.X., 00000
If to Lessee: MultiMedia Access Corporation
0000 Xxxxx Xxxxx Xxxxx - Xxxxx 000
Xxxxxx, Xxxxx 00000
VIII. ORDINANCES AND REGULATIONS
The Lessee hereby covenants and agrees to comply with all the rules and
regulations of the AIA, NBFU, Officers of Boards of the City, County or State
having jurisdiction over the leased premises and with all ordinances and
regulations of governmental authorities wherein the leased premises are located,
at the Lessee's sole cost and expense, but only so far as any of such rules,
ordinances and regulations pertain to the manner in which the Lessee shall use
the leased premises; the obligation to comply in every other case, and also all
cases where such rules, regulations and ordinances require repairs, alterations,
changes or additions to the building (including the leased premises) or building
equipment, or any part of either, being hereby expressly assumed by Lessor and
Lessor covenants and agrees promptly and duly to comply with all such rules,
regulations and ordinances with which Lessee has not herein expressly agreed to
comply.
IX. SIGNS
The Lessee will not place any signs or other advertising matter or
material on the exterior or on the interior where same is possible to be seen
from the exterior of the leased premises or of the building in which the leased
premises are located without the prior written consent of the Lessor. Any
lettering or signs placed on the interior of said building shall be for
directional purposes only and such signs and lettering shall be of a type, kind,
style, character and description to be approved by Lessor All signs shall be in
a manner comparable to those signs which are provided by other tenants. No sign
may be placed on outside of building unless the design, type and location first
be approved by the Lessor in writing.
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X. SERVICES AND UTILITIES
Lessor shall be responsible to furnish all utilities used on the leased
space including electricity, water, gas and lights. Lessee shall be responsible
for telephone service. Lessor shall be responsible to maintain the heating and
air conditioning systems serving the leased premises and shall further maintain
the building's common areas, exterior walls and sewage pipes from the building
to the municipal line. Further, Lessor shall be responsible to furnish
janitorial service each night during the business week and to replace
fluorescent light bulbs and venetian blinds as the necessity arises. It is
understood that Lessor shall not be liable for any damages sustained by Lessee
as a result of the failure to furnish the foregoing unless and until Lessee has
given Lessor written notice of the failure and Lessor has failed within a
reasonable period of time after receipt of notice to correct the failure or
defect. In addition, Lessor shall provide adequate water coolers in common area
locations for Lessee.
XI. QUIET ENJOYMENT
The Lessor covenants and agrees that the Lessee, on paying the monthly
rental and other charges herein and performing the covenants herein, shall and
may peaceably hold and enjoy the leased premises and common areas, including but
not limited to parking areas, sidewalks, exits and lobbies.
XII. ALTERATIONS
Lessee shall maintain the leased premises and every part thereof in
good repair and condition, subject to normal wear and tear, damage thereto by
fire, windstorm, acts of God or the elements excepted Lessee shall not make or
suffer to be made any alterations, additions or improvements to or of the leased
premises or any part thereof without the prior written consent of the Lessor,
which consent shall not be unreasonably withheld If the Lessor consents to the
proposed alterations, additions or improvements to or of the leased premises or
any part thereof, the same shall be at the Lessee's sole cost thereof Any such
alterations shall be made at such times and in such manner as not to
unreasonably interfere with the occupation, use and enjoyment of the remainder
of the occupants of the building. If required by the Lessor, such alterations
shall be removed by the Lessee upon the termination, or sooner expiration of the
tenn of this lease and the Lessee shall repair damage to the premises caused by
such removal, all at Lessee's costs and expense. Lessor shall determine and
notify Lessee in advance if such alterations are to be later removed by Lessee.
XIII. NEW CONSTRUCTION
The Lessor and the Lessee agree as a mutual inducement to the execution
of this lease that Lessor shall erect walls and partitions, floor cover, doors,
lights, ceiling, plumbing, air condition ducting and fixtures in accordance with
the floor plan and modified specifications submitted by Lessee and attached
hereto as Exhibit "A" and being made a part hereof. Such construction shall be
administered by Lessor and performed by contractors and sub-contractors selected
and approved by lessor. The cost of such construction shall be the obligation
and cost of the Lessor in an amount not to exceed Eighteen Thousand Dollars
($18,000.00). Any and all cost incurred by the Lessor to renovate Lessee's space
in excess of Eighteen Thousand Dollars ($18,000.00) shall be reimbursed to
Lessor by Lessee as set forth in Paragraph IV above.
XIV. INDEMNIFICATION
Except as results from the fault of the Lessor, the Lessor shall not be
liable for any damage or injury to any person or property whether it be the
person or property of the Lessee, the Lessee's employees, agents, guests,
invitees or otherwise by reason of the Lessee's occupancy of the leased premises
or because of fire, flood, windstorm, acts of God or for any other reason. The
Lessee agrees to indemnify and save harmless the Lessor from and against any and
all loss, damage, liability or expense by reason or damage to person or property
which
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may arise or be claimed to have arisen as a result of the occupancy or use of
said leased premises by the Lessee or by reason thereof or in connection
therewith, or in any way arising on account of any injury or damage caused to
any person or property on or in the leased premises providing, however, that
Lessee shall not indemnify as to the loss or damage due to the fault of the
Lessor.
XV. DESTRUCTION OF PROPERTY
A. If the leased premises are totally destroyed by fire or other
casualties, both the Lessor and the Lessee shall have the option of terminating
the lease or any renewal thereof upon giving written notice at any time within
thirty days from the date of such destruction, and if the lease be so
terminated, all rent shall cease as of the date of such destruction and any
prepaid rent shall be refunded.
B. If such leased premises are partially damaged by fire or other
casualty, or totally destroyed thereby and neither party elects to terminate
this lease within the provisions of Section XV-A above or Section XV-C below,
then the Lessor agrees at Lessor's sole cost and expense to restore the leased
premises to a kind and quality substantially similar to that immediately prior
to such destruction or damage. Said restoration shall be commenced within a
reasonable time and completed without delay on the part of the Lessor and in any
event shall be accomplished within ninety (90) days from the date of the fire or
casualty. In such case, all rents paid in advance shall be apportioned as of the
date of damage or destruction and all rent thereafter accruing shall be
equitably and proportionately suspended and adjusted according to the nature and
extent of the destruction or damage, pending completion of the rebuilding,
restoration or repair, except that in the event the destruction or damage is so
extensive to make it unfeasible for the Lessee to conduct Lessee's business on
the leased premises, whichever shall first occur. The Lessor shall not be liable
for any inconvenience or interruption of business of the Lessee occasioned by
fire or other casualty. Provided, however, that nothing herein shall relieve
Lessee of the obligation to repay to Lessor the Lessee's portion of renovation
cost as set forth in Paragraphs IV and XIII.
C. If the Lessor undertakes to restore, rebuild or repair the premises
and such restoration, rebuilding or repairs are not accomplished within ninety
(90) days and such failure does not result from causes beyond the control of
Lessor, the Lessee shall have the right to terminate this lease by written
notice to the Lessor within thirty (30) days after the expiration of said ninety
(90) days.
X. Xxxxxx shall not be liable to carry fire, casualty or extended
damage insurance on the property or person of the Lessee or any person or
property which may not or hereafter be placed in the leased premises.
XVI. CONDEMNATION
If, during the term of this lease or any renewal thereof, the whole of
the leased premises or such portion thereof as will make the leased premises
unusable for the purpose leased, be condemned by public authority for public
use, then, in either event, the term hereby granted shall cease and come to an
end as of the date of the vesting of title in such public authority, or when
possession is given to such public authority, whichever event last occurs. Upon
such occurrence the rent shall be proportioned as of such date and any prepaid
rent shall be returned to the Lessee. The Lessor shall be entitled to the entire
award for such taking except for any statutory claim of the Lessee for injury,
damage or destruction of Lessee's business, and relocation expenses awarded to
Lessee as a result of such taking. If possession of the leased premises is taken
or condemned by public authority for public use so as not to make the remaining
portion of the leased premises unusable for the purposes leased, this lease will
not be terminated but shall continue. In such case, the rent shall be equitably
and fairly reduced or abated for the remainder of the term in proportion to the
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amount of the leased premises taken. In no event shall the Lessor be liable to
the Lessee for any business interruption or diminution in the use or for the
value of any unexpired term of the lease.
XVII. ASSIGNMENT AND SUBLEASE
The Lessee covenants and agrees not to encumber or assign this lease or
sublet all or any part of the leased premises without the written consent of the
Lessor, which consent the Lessor shall not unreasonably withhold. Such
assignment shall in no way relieve the Lessee from any obligations hereunder for
the payment of rents or the performance of the conditions, covenants and
provisions of this lease. In no event shall the Lessee assign or sublet the
leased premises for a rent greater than the amount of rent being paid by the
Lessee at the time of the assignment, or any part of the leased premises for any
amount greater than its pro rata share of such rent, as adjusted in Section V or
for any terms, conditions and covenants other than those contained herein. In no
event shall this lease be assigned or be assignable by operation of law or by
voluntary or involuntary bankruptcy proceedings, reorganization proceedings, or
otherwise, and in no event shall this lease or any rights or privileges
hereunder be an asset of Lessee under any bankruptcy, insolvency or
reorganization proceedings. Lessor shall not be liable nor shall the leased
premises be subject to any mechanics materialmen or other type of liens and
Lessee shall keep the premises and property in which the leased premises are
situated free from any such liens and shall indemnify Lessor against and satisfy
any such liens which may result from acts of Lessee, notwithstanding the
foregoing provision.
XVIII. HOLDOVER
It is further covenanted and agreed that if the Lessee, any assignee or
sublessee shall continue to occupy the leased premises after the termination of
the lease (including a termination by notice under Section VI) without prior
written consent of the Lessor, such tenancy shall be Tenancy at Sufferance.
Acceptance by the Lessor of rent after such termination shall not constitute a
renewal of this lease or a consent to such occupancy, or shall it waive the
Lessor's right of re-entry or any other right contained herein.
XIX. SUBORDINATION
This lease shall be subject and subordinated at all times to the liens
of any mortgages or deeds of trust in an amount or amounts whatsoever now
existing or hereafter encumbered to the leased premises, without the necessity
of having further instruments executed by the Lessee to effect such
subordination. Notwithstanding the foregoing, Lessee covenants and agrees to
execute and deliver upon demand such further instruments evidencing such
subordination of this lease to such liens or any such mortgages or deeds of
trust as may be requested by Lessor.
So long as Lessee hereunder shall pay the rent reserved and comply
with, abide by and discharge the terms and conditions, covenants and obligations
on its part, to be kept and performed herein and shall attorn to any successor
in title, notwithstanding the foregoing, Lessor shall on request from Lessee
request any mortgages to agree that the peaceable possession of the Lessee in
and to the leased premises for the remaining term of the lease shall not be
disturbed, in the event of the foreclosure of any mortgage or deed of trust by
the purchaser at such foreclosure sale or such purchaser's successor in title.
XX. LESSOR'S RIGHT TO INSPECT AND DISPLAY
The Lessor shall have the right at all reasonable times during the term
of this lease to enter the leased premises for the purpose of examining or
inspecting same and of making such repairs or alterations therein as the Lessor
shall deem necessary. The Lessor shall also have the right to enter the leased
premises at all reasonable hours for the purpose of displaying the premises to
prospective tenants within ninety (90) days prior to the termination of this
lease with advance notice to Lessee.
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XXI. SUCCESSORS AND ASSIGNS
This lease shall bind and inure to the benefit of the successors,
assigns, heirs, executors, administrators and legal representatives of the
parties hereto.
XXII. NON-WAIVER
No waiver of any covenant or condition of this lease by either party
shall be deemed to imply or constitute a further waiver of the same covenant or
condition or any other covenant or condition of this lease.
XXIII. CONSTRUCTION OF LANGUAGE
The terms "lease", "lease agreement" or "agreement" shall be inclusive
of each other, also to include renewals, extensions or modification of the
lease. Words of any gender used in the lease shall be held to include any other
gender and words in the singular shall be held to include the plural and the
plural to include the singular, when the sense requires. The section headings
and titles are not a part of the lease and shall have no effect upon the
construction or interpretation of any part hereof.
XXIV. LIABILITY INSURANCE
Lessee shall provide liability insurance naming Lessor as additional
co-insured on said policy.
XXV. EXCULPATION
Lessor, its parent, affiliates, subsidiaries, directors, officers or
employees shall not be personally liable for any of the obligations of Lessor
under this lease, and further, Lessee expressly agrees that in the event of any
default by Lessor under this lease, Lessor's liability hereunder or otherwise
shall be limited to, and Lessee shall only have recourse against or the value of
the building.
IN WITNESS WHEREOF, Lessee and Lessor have caused this instrument to be
executed as of the date first above written, by their respective officers or
parties thereunto duly authorized.
LESSOR:
Family Funds Partnership
Date 2/1/95 /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Xxxxxx X. Xxxxx, Managing General Partner
LESSEE:
MultiMedia Access Corporation
Date 1/23/95 /s/ Xxxxxxx Xxxxxxxxxx
-----------------------------------------
Chief Financial Officer
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ADDENDUM
This Addendum, attached to and made a part of that certain Lease dated
the 23rd day of January, 1995, by and between Family Funds Partnership, as
Lessor, and MultiMedia Access Corporation, as Lessee.
WHEREAS, the Lessee, prior to arranging for this lease, did engage the
services of X. Xxxx Company to assist Lessee in identifying for Lessee rental
opportunities within the local market. Although X. Xxxx Company was not involved
in identifying the space referenced in this lease, nor in the subsequent
negotiations, it is the decision of the Lessee to compensate X. Xxxx Company the
sum of Two Thousand Dollars ($2,000.00) which sum has been agreed to by X. Xxxx
Company. Lessee has asked the Lessor to advance this cost and to factor the same
into the rent to be reimbursed by the Lessee to the Lessor at the interest rate
of nine percent (9%) per annum. For Lessee's commitment to reimburse Lessor, the
Lessor agrees to advance this cost and factor it back into the rent.
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