LEASE AGREEMENT
This Lease Agreement (the "LEASE") is made this 6th day of May, 1997, by
and among BEACON PROPERTIES, LP., a Delaware limited partnership (the
"LANDLORD"); and EN POINTE TECHNOLOGIES, INC, (the "TENANT").
W I T N E S S E T H:
1. PREMISES.
Landlord does hereby rent and lease to Tenant the following described
space in the office complex know as Perimeter Center (the "PARK") in the office
building situated at 000 XXXXXXXXX XXXXXX XXXXXXX, Xxxxxxx, Xxxxxxx (the
"BUILDING"): office space on the GARDEN Level, east wing, known as Suite 45 as
shown on EXHIBIT A, attached hereto and incorporated herein (the "PREMISES").
For all purposes under this Lease, the Premises shall be deemed to include
approximately 4.661 rentable square feet (including both Tenant's exclusive
usable area and common areas attributable to Tenant's usable area).
2. TERM.
The term of this Lease shall be for a period commencing on the earlier
to occur of (i) the day Tenant occupies the Premises for the purpose of
conducting business therefrom, or (ii) the 1ST day of JULY, 1997, at 12:01 A.M.
and expiring on the 30th day of JUNE, 2000, at 11:59 P.M., unless sooner
terminated or extended as hereinafter provided (such term, being hereinafter
referred to as the "TERM").
3. COMPLETION OF IMPROVEMENT. SEE SPECIAL STIPULATION #1
Landlord agrees to proceed with due diligence to prepare the Premises
for Tenant's occupancy in accordance with the terms of the Lease.
4. POSSESSION.
If this lease is executed before the Premises become ready for
occupancy and Landlord cannot deliver possession of the Premises on or before
commencement of the Term for any reason other than an omission, delay or default
caused by Tenant, rent shall xxxxx until Landlord can deliver possession, and
Tenant hereby accepts such abatement in full settlement of any and all claims
Tenant may have against Landlord arising from Landlord's inability to deliver
possession at the commencement of the Term. Any occupancy by Tenant prior to
the beginning of the Term, even if rent free, shall in all other respects be
pursuant to the terms and provisions of this Lease. By occupying the Premises
as tenant, Tenant shall be deemed to have accepted the same and acknowledged
that the Premises are in the condition required hereunder.
5. BASE MONTHLY RENTAL
(e) Tenant shall pay in advance to Landlord at Landlord's address for
rental payments set out in Paragraph 25 hereof, or at such other
place as Landlord shall designate in writing, promptly, without
demand, on the first day of each month during the Term a base
monthly rental (the "BASE MONTHLY RENTAL"), which originally
shall be NINE THOUSAND THREE HUNDRED TWENTY-TWO AND NO/100
DOLLARS ($9,322.00), and which shall be adjusted from time to
time as provided in Paragraph 6 hereof. If the Term commences on
a day other than the first day of a month, or terminates on a day
other than the last day of a month, the Base Monthly Rental for
the first and last partial month shall be prorated based upon the
actual number of days in such a month. The Base Monthly Rental
shall be due and payable in all events, without any setoff or
deduction whatsoever.
(f) Simultaneously with the execution of this Lease, Tenant has paid
to Landlord, and Landlord hereby acknowledges the receipt of NINE
THOUSAND THREE HUNDRED TWENTY-TWO AND NO/100 DOLLARS (9,322.00)
(the "INITIAL INSTALLMENT"). Such sum shall be applied by
Landlord to the first installment(s) of Base Monthly Rental as
they become due hereunder. In the event Tenant fails to take
possession of the Premises in accordance with all of the terms
hereof, the initial installment shall be retained by Landlord for
application in reduction, but not in satisfaction, of damages
suffered by Landlord as a result of such breach by Tenant.
1. BASE MONTHLY RENTAL ADJUSTMENT.
At the end of each and every Lease Year, as herein below defined,
during the Term, the Base Monthly Rental, as increased by previous rental
adjustments hereunder, shall be increased for the next succeeding Lease Year by
an amount equal to the product of (a) the Base Monthly Rental, as increased by
previous rental adjustments hereunder, at the end of the Lease Year immediately
preceding the Lease Year for which the increase is being calculated, multiplied
by (b) FIVE percent (5%). Each adjustment shall remain in effect until the next
such annual adjustment is made.
(c) Whenever the term "Additional Rent" appears as contained in this Lease,
such reference shall apply to rental adjustments as called for in Paragraph
6 herein.
"LEASE YEAR," as used herein, means a period of twelve (12) consecutive
calendar months, or a portion thereof falling within the Term, with the
first Lease Year commencing with the first day of the first calendar month
beginning on or
after the commencement date of the Term and each subsequent Lease Year
commencing on each anniversary during the Term of the commencement date of
the first Lease Year. The period, if any, from the commencement date of
the Term to the beginning of the first Lease Year shall be treated as if it
were part of the first Lease Year under this Lease for all purposes.
7. (INTENTIONALLY OMITTED)
8. BROKERAGE DISCLOSURE.
Tenant represents that COLLIERS/XXXXXX & COMPANY has acted as broker
for Tenant in connection with this Lease, and shall be paid a commission by
Landlord pursuant to the terms of a separate agreement. Tenant warrants that
there are no other claims for brokers' commissions or finders' fees in
connection with its execution of this Lease. Tenant hereby indemnifies and
holds Landlord and Landlord's agent harmless from and against any and all loss,
cost, damage or expense, incurred by Landlord or Landlord's agent as a result of
or in conjunction with a claim of any real estate agent or broker, if made by,
through or under Tenant.
9. USE.
The Premises shall be used for business office and related ancillary
purposes and for no other purposes. The Premises shall not be used for any
illegal purposes, nor in violation of any regulation of any governmental body,
nor in any manner to create any nuisance or trespass, nor in any manner to
vitiate the insurance or increase the rate of insurance on the Premises or the
Building. Tenant shall, at its own expense, promptly comply with any and all
municipal, county, state and federal statutes, regulations and/or requirements
applicable or in any way relating to the use and occupancy of the Premises.
10. TENANT'S ACCEPTANCE.
Tenant acknowledges that it has bee afforded an opportunity to inspect
the Premises and accepts the Premises "as is" and as suited for Tenant's
intended use thereof, subject only to the provisions of Paragraph 3. Upon
completion of the improvements contemplated by Paragraph 3, or occupancy of the
Premises by Tenant, whichever first occurs, Tenant shall be deemed to have
accepted any improvements made since the date hereof.
11. ASSIGNMENT AND SUBLETTING.
(k) Tenant shall not voluntarily or involuntarily, whether by
operation of law or otherwise, assign, transfer, hypothecate or
otherwise encumber this Lease or any interest herein and shall
not sublet or permit the use by others of the Premises or any
portion thereof without obtaining in each instance Landlord's
prior written consent, which consent may not be unreasonably
withheld or delayed. Landlord's consent to one assignment,
sublease, transfer or hypothecation shall not be deemed as a
consent to any other or further assignment, sublease, transfer or
hypothecation. Any such assignment, sublease, transfer or
hypothecation with Landlord's prior written consent shall be void
and shall, at Landlord's option, constitute a default under this
Lease. No acceptance by Landlord of any rent or any other sum of
money from any assignee, sublessee or other category of
transferee shall release Tenant from any of its obligations
hereunder or be deemed to constitute Landlord's consent to any
assignment, sublease, transfer or hypothecation, and in any
event, Tenant shall remain primarily liable on this Lease for the
entire Term hereof and shall in no way be released from the full
complete performance of all the terms, conditions, covenants and
agreements contained herein.
(l) If Tenant should desire to assign this Lease or sublet the
Premises or any part thereof, Tenant shall give Landlord prior
written notice, which notice shall specify (i) the name and
business of the proposed assignee or sublessee, (ii) the amount
and location of the space affected, (iii) the proposed effective
date and duration of the subletting or assignment, and (iv) the
proposed rental or other consideration to be paid to Tenant by
such sublessee or assignee. Landlord shall then have a period of
fifteen (15) days following receipt of such notice within which
to notify Tenant in writing that Landlord elects either (1) to
terminate this Lease as to the space so affected as of the date
so specified by Tenant, in which event Tenant will on that date
be relieved of all further obligations to pay rent hereunder as
to such space, or (2) to permit Tenant to assign or sublet such
space, in which event if the proposed rental between Tenant and
sublessee for the space affected is greater that the Base Monthly
Rental as adjusted under this Lease applicable to the space
affected, or if consideration other than rental is paid to Tenant
by such assignee or sublessee with respect to the affected space,
then fifty percent (50%) of such excess rental and other
consideration shall be deemed additional rent owned by Tenant to
Landlord under this Lease, and the amount of such excess shall be
paid by Tenant to Landlord in the same manner that Tenant pays
the Base Monthly Rental hereunder and in addition thereto, or (3)
to withhold consent to Tenant's assigning or subleasing such
space and to continue this Lease in full force and effect as to
the entire Premises. If Landlord should fail to notify Tenant in
writing of such election within said fifteen (15) day period,
Landlord shall be deemed to have elected option (3) above.
Tenant agrees to reimburse Landlord for Landlord's reasonable
attorneys' fees and costs incurred in connection with the
processing and documentation of any request made pursuant to this
Paragraph. Notwithstanding the giving by Landlord of its
consent to any assignment or sublease with respect to the
Premises, no such assignee or sublessee may exercise any
expansion option, right of first refusal option, or renewal
option under this Lease except in accordance with a separate
written agreement entered into directly between such assignee or
sublessee and Landlord, and, absent Landlord's written agreement
to the contrary, all option rights of Tenant, and all lease
rights of Tenant created pursuant to the exercise of any option
rights, with respect to any space so assigned or subleased shall
be extinguished.
1. HOLDING OVER.
If Tenant remains in possession after the expiration of the Term, or
the termination of this Lease, it shall be a tenant at sufferance only and there
shall be no renewal hereof by operation of law. In such event, such occupancy
shall be at an amount equal to one hundred fifty percent (150%) of the Base
Monthly Rental in effect immediately prior to the expiration or termination of
this Lease and shall otherwise be subject to all of the covenants and provisions
of this Lease (including, without limitation, Paragraph 7) insofar as the same
are applicable to a month-to-month tenancy. Tenant shall be liable to Landlord
for all damages incurred by Landlord as a result, in whole or in part, of
Tenant's failure to deliver possession of the Premises to Landlord upon
expiration or termination of the Term.
13. ALTERATIONS AND IMPROVEMENTS.
(m) No alteration in, or addition to, the Premises will be made
without first obtaining Landlord's prior written consent, which
Landlord may grant or withhold for any reason or for no reason,
and any such work consented to, although paid for by Tenant, will
be done by Landlord.
(n) If Tenant's actions, omissions or occupancy of the Premises shall
cause the rate of fire or other insurance either on the Building
or the Premises to be increased, Tenant shall pay, as additional
rent, the amount of any such increase promptly upon demand by
Landlord.
(o) All erections, additions, fixtures and improvements, whether
temporary or permanent in character (except only the movable
office furniture of Tenant) made in or upon the Premises, shall
be and remain Landlord's property and shall remain upon the
Premises at the termination of this Lease by lapse of time or
otherwise, with no compensation to Tenant. Landlord reserves the
right to require Tenant to remove any such improvements or
additions at the termination hereof or within fifteen (15) days
thereafter. Landlord may, at its election, repair any damage to
the Premises caused by or in connection with the removal of any
articles of personal property, business or trade fixtures,
alterations, improvements and installations, and all costs for
such repairs shall be at Tenant's expense.
1. REPAIRS TO THE PREMISES.
Landlord shall not be required to make any repairs or improvements to
the Premises, except structural repairs necessary for safety and tenant ability.
Tenant shall, at its own cost and expense, keep in good repair all portions of
the Premises, including but not limited to windows, glass and plate glass,
doors, any special store front, interior walls and finish work, floors and floor
coverings, and supplemental or special heating and air conditioning systems, and
shall take good care of the Premises and its fixtures and permit no waste,
except normal wear and tear with due consideration for the purpose for which the
Premises are leased. Tenant shall maintain and replace, at its cost and
expense, all light bulbs and fixtures in the Premises that are not the
Building's standard 2-foot by 4-foot fluorescent light fixtures and bulbs
therefor. Any and all repairs required under this Paragraph, although paid for
by Tenant, will be performed by Landlord.
15. ENTRY BY LANDLORD.
Landlord or its agents may enter the Premises at reasonable hours to
exhibit same to prospective purchasers or tenants, to inspect the Premises to
see that Tenant is complying with all of its obligations hereunder, and to make
repairs, improvements, alterations or additions which Landlord shall deem
necessary for the safety, preservation or improvement of the Building or to make
repairs or modifications to any adjoining space. Landlord shall be allowed to
take all material into and upon the Premises that may be required to make such
repairs, improvements, alterations, alterations or additions for the benefit of
Tenant without in any way being deemed or held guilty of an eviction of Tenant,
and the Base Monthly Rental, Additional Rent and other charges hereunder shall
in no wise xxxxx while said repairs, improvements, alterations or additions are
being made. All such repairs, improvements, alterations and additions shall be
done during ordinary business hours, or, if any such work is at the request of
Tenant shall pay for all overtime costs.
16. DEFAULT AND REMEDIES.
(p) In addition to the circumstances hereinbefore set forth, the
occurrence of any of the following shall constitute a material
breach an default of this Lease by Tenant:
(i) the filing of any voluntary petition or similar pleading
under any section or sections of any bankruptcy or
insolvency act by or against Tenant or the institution of
any voluntary or involuntary petition or proceeding, the
petition or proceeding is not dismissed within thirty (30)
days from the date it is filed, or
the making of an assignment for the benefit of its creditors
by Tenant, or the appointment of a trustee or receiver for
Tenant or for the major part of Tenant's property;
(ii) Tenant's failure to pay the Base Monthly Rental, Additional
Rent or any other sum due hereunder, if such nonpayment
continues for ten (10) or more days after the same is due
and payable, or Tenant's default in the prompt and full
performance of any other provision of this Lease and Tenant
does not cure the default within thirty (30) days after
written demand by Landlord that the default be cured (unless
the default involves a hazardous condition, which shall be
cured forthwith upon Landlord's demand);
(iii)the levy, execution or attachment against assets of Tenant
located in the Premises; or
(iv) Tenant's failure to take possession or occupancy of, or
desertion or abandonment of, the Premises (or any
substantial portion thereof), or the Premises (or any
substantial portion thereof) otherwise becoming vacant.
(a) In the event of any default as aforesaid by Tenant, Landlord, in
addition to any and all other rights or remedies it may have at
law or in equity, shall have the option of pursuing any one or
more of the following remedies:
(ii) Landlord shall have the immediate right of reentry and may
remove all property from the Premises to a warehouse or
elsewhere at the cost of, and for the account of Tenant, all
without being deemed guilty of trespass or becoming liable
for any loss, damage or damages which may be occasioned
thereby;
(iii)Landlord may terminate this Lease by giving notice of
termination, in which event this Lease shall expire and
terminate on the date specified in such notice of
termination, with the same force and effect as though the
date so specified were the date herein originally fixed as
the termination date of the Term of this Lease, and all
rights of Tenant under this Lease arising up to the date of
such termination, and Tenant shall surrender the Premises to
Landlord on the date specified in such notice;
(iv) Landlord may terminate this Lease as provided in
subparagraph 16(b)(ii) hereof and recover from Tenant all
damages Landlord may incur by reason of Tenant's default,
including, without limitation, a sum which, at the date of
such termination, represents the then present value
(calculated at the rate of nine percent (9%) interest per
annum) of the excess, if any, of (A) the Base Monthly
Rental, Additional Rent, and all other sums which would have
been payable hereunder by Tenant for the period commencing
with the day following the date of such termination and
ending with the date hereinbefore set for the expiration of
the full term hereby granted, over (B) the aggregate
reasonable rental value of the Premises (less reasonable
brokerage commissions, attorneys' fees and other costs
relating to the reletting of the Premises) for the same
period, all of which excess sum shall be deemed immediately
due and payable;
(v) Landlord may, without terminating this Lease, declare
immediately due and payable all Base Monthly Rental,
Additional Rent, and other rents and amounts due and coming
due under this Lease for the entire remaining Term hereof,
together with all other amounts previously due, at once;
provided, however, that such payment shall not be deemed a
penalty or liquidated damages but shall merely constitute
payment in advance of rent for the remainder of said Term;
upon making such payment, Tenant shall be entitled to
receive from Landlord all rents received by Landlord from
other assignees, tenants and subtenants on account of said
Premises during the Term of this Lease, provided that the
monies to which Tenant shall so become entitled shall in no
event exceed the entire amount actually paid by Tenant to
Landlord pursuant to this clause (iv) less all costs,
expenses and attorneys' fees of Landlord incurred in
connection with the reletting of the Premises; or
(vi) Landlord may, from time to time without termination this
Lease, and without releasing Tenant in whole or in part from
Tenant's obligation to pay Base Monthly Rental, Additional
Rent and all other amounts due under this Lease and perform
all of the covenants, conditions and agreements to be
performed by Tenant as provided in this Lease, make such
alterations and repairs, Landlord may, but shall not be
obligated to, relet the Premises or any part thereof for
such term or terms (which may be for a term extending beyond
the Term of this Lease) at such rental or rentals and upon
such other terms and conditions as Landlord in its sole
discretion may deem advisable or acceptable; upon each
reletting, all rentals received by Landlord from such
reletting shall be applied first, to the payment of any
indebtedness other than rent due hereunder from Tenant to
Landlord, second, to the payment of any costs and expenses
of such reletting, including brokerage fees and attorneys'
fees, and of costs of such alterations and repairs, third to
the payment of the Base Monthly Rental, Additional Rent and
other charges due and unpaid hereunder, and the residue, if
any shall be held by Landlord and applied against payments
of future Base Monthly Rental, Additional Rent or other
charges as the same may become due and payable hereunder; in
no event shall Tenant be entitled to any excess rental
received by Landlord over and above charges that Tenant is
obligated to pay hereunder,
including Base Monthly Rental, Additional Rent and all other
charges; if such rentals received from such reletting during
any month are less than those to be paid during the month by
Tenant hereunder, including Base Monthly Rental, Additional
Rent and all other charges, Tenant shall pay any such
deficiency to Landlord, which deficiency shall be calculated
and paid monthly; Tenant shall also pay Landlord as soon as
ascertained and upon demand all costs and expenses incurred
by Landlord in connection with such reletting and in making
any alterations and repairs which are not covered by the
rentals received from such reletting; notwithstanding any
such reletting without termination, Landlord may at any time
thereafter elect to terminate this Lease for such previous
breach.
(c) Landlord's reentry, demand for possession, notice that the
tenancy hereby created will be terminated on the date therein
named, institution of an action of forcible detainer or ejectment
or the entering of a judgment for possession in such action or
any other act or acts resulting in the termination of Tenant's
right to possession of the Premises shall not relieve Tenant from
Tenant's obligation to pay all sums due hereunder, except as
herein expressly provided. Landlord may collect and receive any
Base Monthly Rental, Additional Rent or other charges due from
Tenant, and the payment thereof shall not constitute a waiver of
or affect any notice or demand given, suit instituted or judgment
obtained by Landlord, or be held to waive, affect, change, modify
or after the rights or remedies which Landlord has in equity or
at law or by virtue of this Lease.
(d) In the event Landlord commences any proceedings for nonpayment of
Base Monthly Rental, Additional Rent or other sums due hereunder,
Tenant will not interpose any counterclaim of whatever nature or
description which is not directly related to the Lease in any
such proceeding. This shall not, however, be construed as a
waiver of Tenant's right to assert such claims in any separate
action or actions brought by Tenant. Tenant hereby expressly and
voluntarily waives any right to jury trial with respect to any
action brought under or with respect to this Lease, and Landlord
and Tenant acknowledge and agree that any such action must be
brought in a court located in DeKalb County, Georgia, and having
jurisdiction therein.
(e) All sums past due under this Lease shall bear interest at
eighteen percent (18%) per annum, but in no event in excess of
the maximum lawful rate, from due date until paid-in-full.
(f) Except as expressly provided in this Lease, Tenant hereby waives
any and every form of demand and notice prescribed by statute or
other law, including without limitation the notice of any
election of remedies made by Landlord under this Paragraph,
demand for payment of any rent, or demand for possession.
(g) All rights and remedies of Landlord created or otherwise existing
at law are cumulative, and the exercise of one or more rights or
remedies shall not be taken to exclude or waive the right to
exercise any other.
(h) Tenant shall and hereby agrees to pay all costs and expenses
incurred by Landlord in enforcing any of the covenants and
agreements of this Lease, or as a result of an action brought by
Landlord against Tenant for an unlawful detainer of the Premises,
and all such costs, expenses and attorneys' fees shall, if paid
by Landlord, be paid by Tenant to Landlord within fifteen (15)
days of Landlord's written demand therefor, together with
interest at eighteen percent (18%) per annum, but in no event in
excess of the maximum lawful rate, from the date of Landlord's
payment thereof.
1. LANDLORD'S SERVICES.
(q) Landlord shall render services and supplies incidental to this
Lease in accordance with and as described in this Paragraph 17,
as follows:
(i) Landlord shall cause the Premises to be cleaned.
(ii) Landlord shall furnish electric current for Building
standard tenant lighting and small business machinery only
from electric circuits designated by Landlord for Tenant's
use. Such circuits will be fed into one or more of the
existing electrical panel(s) in the electrical closets
located on the same Building floor as the Premises.
Tenant's usage of said panels on any given floor shall not
exceed Tenant's pro rata share (based on rentable square
footage) of the panels' capacity. Tenant will not use any
electrical equipment which in Landlord's opinion will
overload the wiring installations or interfere with the
reasonable use thereof by other users in the Building.
Tenant will not, without Landlord's prior written consent in
each instance, connect any items such as non-Building
standard tenant lighting, vending equipment, printing or
duplicating machines, computers (other than desktop word
processors and personal computers), auxiliary air
conditioners, and other computer-related equipment to the
Building's electrical system, or make any alteration or
addition to the system. If Tenant desires any such items,
additional 208/120 volt electrical power beyond that
supplied by Landlord as provided above, electric current in
excess of 208/120 volts for purposes other than Building
standard tenant lighting, or other special power
requirements or circuits, then
Tenant may request Landlord to provide such supplemental
power or circuits to the Premises, which request Landlord
may grant or withhold in its reasonable discretion. If
Landlord furnishes such power or circuits, Tenant shall pay
Landlord, on demand, the cost of the design, installation
and maintenance of the facilities required to provide such
additional or special electric power or circuits and the
cost of all electric current so provided at a rate not to
exceed that which would be charged by Georgia Power Company,
or its successor, if Tenant were a direct customer thereof.
Landlord may require separate electrical metering of such
supplemental electrical power or circuits to the Premises,
and Tenant shall pay, on demand, the cost of the design,
installation and maintenance of such metering facilities.
In no event shall Tenant have access to any electrical
closets in the Building, it being agreed that any electrical
engineering design or contract work shall be performed at
Tenant's expense by Landlord or an electrical engineer
and/or electrical contractor designated by Landlord. All
invoices respecting the design, installation and maintenance
of the facilities requested by Tenant shall be paid within
thirty (30) days of Tenant's receipt thereof. Landlord's
charge to Tenant for the cost of electric current so
provided shall be paid within thirty (30) days of receipt of
invoice by Tenant.
(iii)Landlord shall furnish seasonable air conditioning and
heating during normal business hours (8:00 A.M. to 6:00 P.M
Monday through Friday and 8:00 A.M. until 1:00 P.M.
Saturday), said heat or air conditioning not being furnished
Sunday or holidays observed by Landlord. Should Tenant
desire either heating or air conditioning at other times,
Landlord agrees to provide same upon reasonable advance
written request by Tenant, but at Tenant's expense at such
hourly rates as may be determined from time to time by
Landlord, which charge Tenant shall pay promptly upon being
billed therefor. If Tenant installs equipment which in
Landlord's opinion produces enough heat to cause comfort
problems in the Building or any part thereof, or if Tenant
desires a supplemental air conditioning system and Landlord
has approved same, then Landlord may, at its option, either
cause to be designed or permit Tenant to design a
supplemental air conditioning system, subject to Landlord's
approval, and Landlord shall install such system
substantially in accordance with such design. If Tenant has
requested such supplemental system, Tenant shall be
responsible for determining that the design of such system
is adequate for its needs. Tenant agrees to pay Landlord
for such equipment, design, installation, metering and
consumption of electricity for supplemental air conditioning
and to maintain such equipment at Tenant's expense. If such
supplemental air conditioning is installed at the request of
either Tenant or Landlord in a manner that utilizes the
Building condenser water loop, Tenant shall pay a one-time
tap fee, payable within thirty (30) days of invoicing from
Landlord, of THREE HUNDRED FIFTY AND NO/100 DOLLARS
($350.00) per ton of cooling equipment installed. Tenant
shall also pay for the necessary pump and piping to connect
the supplemental air conditioning equipment to the Building
condenser water risers. Regardless of whether such
supplemental air conditioning is tapped into the Building
condenser water loop, Tenant shall pay (in addition to the
one-time tap fee, if applicable) each calendar quarter in
advance, as additional rent, a usage charge based upon the
tonnage of the cooling equipment installed. At the
commencement of the Term, this usage charge shall be EIGHTY
AND NO/100 Dollars ($80.00) per ton per year of cooling
equipment. Such usage charge may be increased at any time
and from time to time by the same percentage increase from
the date of the last usage charge adjustment if any, in the
officially authorized rate schedule of Georgia Power
Company, or its successors, applicable to the Building;
provided, however, that in no event will such usage charge,
as increased hereunder, ever be decreased pursuant to any
adjustments hereunder, it being agreed that if such a
decrease would result, then no adjustment would be made
until the next adjustment hereunder. Each adjustment may be
made effective as of the effective date of such Georgia
Power Company rate schedule adjustment and shall effect
until the next adjustment is made hereunder.
(a) Landlord shall not be liable for any damages directly or
indirectly resulting from the installation, use or interruption
of use of any equipment in connection with the furnishing of
services referred to in this Paragraph, and particularly any
interruption in services by any cause beyond the immediate
control of Landlord, provided Landlord shall use reasonable
diligence in the restoration of such services.
2. DESTRUCTION OF PREMISES.
Should the Premises be so damaged by fire or other cause that
rebuilding or repairs cannot be completed within one hundred eighty (180) days
from the date of the fire, or other cause of damage, then either Landlord or
Tenant may terminate this Lease by written notice to the other given within
thirty (30) days of the date of such damage or destruction, in which event rent
shall be abated from the date of such damage or destruction. However, if the
damage or destruction is such that rebuilding or repairs can be completed within
one hundred eighty (180) days, Landlord covenants and agrees, subject to the
provisions of this
Paragraph 18,to make such repairs with reasonable promptness and dispatch, and
to allow Tenant and abatement in the rent for such time as the Premises are
untenantable or proportionately for such portion of the Premises as shall be
untenantable, and Tenant covenants and agrees that the terms of this Lease shall
not be otherwise affected. Such repairs and restoration relating to Tenant's
initial leasehold improvements or otherwise made by or for Tenant shall be made
at Tenant's expense in accordance with plans and specifications approved by
Landlord and Tenant. Repairs and restoration to base Building improvements
required by this Lease to be furnished by Landlord at its expense (other than
Tenant's initial leasehold improvements) shall be made at Landlord's expense.
In no event shall Landlord be required to repair or replace any trade fixtures,
furniture, equipment or other property belonging to Tenant nor shall Landlord
have any obligation to incur any cost to repair, reconstruct or restore the
Premises or the Building in excess of insurance proceeds from the casualty
necessitating such work that are made available to Landlord, under its sole
control, for such work. Notwithstanding anything to the contrary contained in
this Paragraph, Landlord shall not have any obligation whatsoever to repair,
reconstruct or restore the Premises when the damage resulting from any casualty
contained under this Paragraph occurs during the last twelve (12) months of the
Term of this Lease.
19. CONDEMNATION OF PREMISES.
(s) If any part of the Premises shall be taken or appropriated by any
public or quasi-public authority under the power of eminent
domain, Landlord shall have the right, at its option, to
terminate this Lease effective as of the date possession is take
by said authority (unless all of the Premises are so taken in
which case this Lease shall terminate), and shall be entitled to
any and all income, rent or award and any interest thereon
whatsoever which may be paid or made in connection with such
public or quasi-public use or purpose. Tenant hereby assigns to
Landlord its entire interest in any and all such awards, and
shall have no claim against Landlord for the value of any portion
of the unexpired Term. If a part of the Premises shall be so
taken or appropriated, and Landlord does not elect to terminate
this Lease, the Base Monthly Rental thereafter to be paid shall
be reduced by an amount bearing the same ratio to the total
amount of Base Monthly Rental as the rentable area of the
Premises so taken bears to the entire Premises.
(t) If any part of the Building other than the Premises shall be so
taken or appropriated, Landlord shall have the sole right, at its
option, to terminate this Lease and shall be entitled to the
entire award as above provided, and in such case Tenant shall
likewise have no claim against Landlord for the value of any
unexpired Term of this Lease.
(u) Nothing hereinbefore contained shall be deemed to deny to Tenant
its right to claim from the condemning authority compensation or
damages for its trade fixtures and personal property, provided
the condemning authority makes a separate award therefor.
1. INSURANCE.
Tenant shall carry "all risk" coverage insurance insuring Tenant's
interest in the improvements and betterments to the Premises, including initial
improvements installed by Landlord, and any and all furniture, equipment,
supplies and other property owned, leased, held or possessed by it and contained
therein, in an amount equal to the full replacement cost thereof, subject to
deductible amounts reasonably satisfactory to Landlord, plus business
interruption insurance respecting Tenant's operations from the Premises in an
amount reasonably satisfactory Landlord. Tenant shall also procure and maintain
throughout the Term a policy or policies of commercial general liability
insurance, including contractual liability, insuring Tenant, Landlord and any
other persons designated by Landlord, as additional insureds, against any and
all liabilities for injury to or death of a person or persons and for damage to
property occasioned by or arising out of any construction work being done on the
Premises, or arising out of the condition, use or occupancy of the Premises, or
in any way occasioned by or arising out of the activities of Tenant or its
agents, employees or licensees in the Premises, or other portions of the
Building, Building site and adjacent parking areas in amounts not less than
$1,000,000 with respect to any one casualty of occurrence and $100,000 with
respect to property damage, including fire legal liability. Landlord and Tenant
shall each have included in all policies of insurance respectively obtained by
them with respect to the Building. Building site and adjacent parking areas
and/or the Premises a waiver by the insurer of all rights of subrogation against
the other in connection with any loss or damage thereby insured against. So
long as both Landlord's and Tenant's policies then in force include such mutual
waiver of subrogation, Landlord and Tenant, to the fullest extent permitted by
law, each waive all right of recovery against the other for, and agree to
release the other from liability for, loss or damage to the extent such loss or
damage is covered or could be covered by valid and collectible insurance in
effect at the time of such loss or damage. If such waiver of subrogation shall
not be obtainable or shall be obtainable only at a premium over that chargeable
without such waiver, the party seeking such waiver shall notify the other
thereof in writing, and the latter shall have ten (10) days in which either (i)
to procure on behalf of the notifying party insurance with such waiver from a
company or companies reasonably satisfactory to the notifying party or (ii) to
agree to pay such additional premium (in Tenant's case, in the proportion which
the rentable square footage of the Premises bears to the total rentable square
footage of the area covered by the insurance policy of Landlord). All insurance
policies procured and maintained by Tenant pursuant to this Paragraph 20 shall
be carried with companies licensed to do business in the State of Georgia with
an A.M. Best rating of A-8 or better and shall be
noncancellable except after thirty (30) days written notice to Landlord and any
designees of Landlord. Such policies or duly executed certificates of insurance
with respect thereto shall be delivered to Landlord prior to the date that
Tenant takes possession of the Premises, and renewals thereof as required shall
be delivered to Landlord at least thirty (30) days prior to the expiration of
each respective policy term.
21. USUFRUCT ONLY.
This contract shall create the relationship of landlord and tenant
between Landlord and Tenant; no estate shall pass out of Landlord; Tenant has
only a asufruct, not subject to levy and sale.
22. WAIVER.
The waiver by Landlord of any breach of any term, covenant or
condition herein contained shall not be deemed to be a waiver of any other term,
covenant or any subsequent breach of the same or any other term, covenant or
condition herein contained. The subsequent acceptance of Base Monthly Rental,
Additional Rent or other sums due hereunder by Landlord shall not be deemed to
be a waiver of any preceding breach by Tenant of any term, covenant or condition
of this Lease, other than the failure of Tenant to pay the particular payment so
accepted, regardless of Landlord's knowledge of such preceding breach at the
time of acceptance of such payment. No covenant, term or condition of this
Lease shall be deemed to have been waived by Landlord, unless such waiver is in
writing signed by Landlord.
23. ENTIRE AGREEMENT.
This Lease sets forth all the covenants, promises, agreements,
conditions and undertakings between Landlord and Tenant concerning the Premises,
and there are no covenants, promises, agreements, conditions or undertakings
other than as herein set forth. No subsequent alteration, amendment, change or
addition to this Lease, except as to changes or additions to the Rules and
Regulations described in Paragraph 34, shall be binding upon Landlord or Tenant
unless reduced to writing and signed by authorized representatives of each of
them.
24. LANDLORD'S CONSENT.
In every instance herein in which Landlord is called upon to give its
consent, such consent may be withheld for any reason or for no reason, subject
to the provisions of paragraph 11(a) above, or if granted, may be subject to
those conditions which Landlord deems appropriate. No such consent shall be
binding upon Landlord unless made expressly in writing signed by Landlord.
25. NOTICES.
(y) Every notice, demand or request hereunder shall be in writing,
and shall be deemed to have been property given if delivered
personally or by courier, with a signed receipt, or if deposited
with the United States Postal Service (or any official successor
thereto) designated certified mail, return receipt requested,
bearing adequate postage and addressed as follows:
If to Tenant: EN POINTE TECHNOLOGIES, INC.
000 Xxxxxxxxx Xxxxxx Xxxxxxx, Xxxxx 00
Xxxxxxx, Xxxxxxx 00000
*With copy to: ENPOINTE TECHNOLOGIES, INC.
000 Xxxxx Xxxxxxxxx Xxxxxxxxx, 00xx Xxxxx
Xx Xxxxxxx, Xxxxxxxxxx 00000
*Failure of Landlord to deliver copies to the
El Segundo, California address under this
Paragraph 25 shall not constitute a failure
by Landlord to have property delivered notice
under the terms of this Lease.
If to Landlord: BEACON PROPERTIES, L.P.
c/o Beacon Properties Corporation
00 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Chief Operating Officer
With copy to: Senior Asset Manager
Landlord's address
for rental payments: BEACON PROPERTIES, L.P.
X.X. Xxx 000000
Xxxxxxx, Xxxxxxx 00000-0000
The foregoing addresses may be changed by thirty (30) days prior
written notice from time to time.
(b) Tenant hereby appoints as his agent to receive the service of all
dispossessory or distraint proceedings and notices thereunder,
and all notices required under this Lease, the person in charge
of or occupying the Premises at the time; and if no person is in
charge or occupying same, then such service or notice may be made
by attaching the same on the main entrance to the Premises. A
copy of all notices under this Lease shall also be sent to
Tenant's last address of which notice was given to Landlord in
accordance with this Paragraph 25, if different from the
Premises.
2. TRANSFER OF TENANTS.
Landlord reserves the right, upon thirty (30) days written notice, to
transfer and remove Tenant from the Premises to any other space of substantially
equivalent size and area in the Park. Landlord shall bear the expense of said
removal as well as the expense of any renovations of alterations necessary to
make the new space conform in arrangement and layout with the original space
covered by this Lease.
27. SUCCESSORS AND ASSIGNS: ATTORNMENT.
The covenants, conditions and agreements herein contained shall inure
to the benefit of and be binding upon Landlord, its successors and assigns, and
shall be binding upon Tenant, its heirs, executors, administrators, successors
and assigns, and shall inure to the benefit of Tenant and only such assigns of
Tenant to whom the assignment by Tenant has been consented to by Landlord.
Nothing contained in this Lease shall in any manner restrict Landlord's right to
assign or encumber this Lease in its sole discretion. Should Landlord assign
this Lease as provided for above, or should Landlord enter into a security deed
or other mortgage affecting the Premises and should the holder of such deed or
mortgage succeed to the interest of Landlord, Tenant shall be bound to said
assignee or any such holder under all the terms, covenants and conditions of
this Lease for the balance of the Term hereof remaining after such succession,
and Tenant shall attorn to such succeeding party as its Landlord under this
Lease promptly under any such succession. Tenant agrees that should any party
so succeeding to the interest of Landlord require a separate agreement of
attornment regarding the matters covered by this Lease, then Tenant shall enter
into any such "attornment agreement," provided the same does not modify any of
the provisions of this Lease and has no adverse effect upon Tenant's continued
occupancy of the Premises.
28. TIME IS OF THE ESSENCE.
Time is of the essence with respect to the performance of each of the
covenants and agreements of this Lease; provided, however, that failure of
Landlord to provide Tenant with any notification regarding adjustments in Base
Monthly Rental, reimbursements for any Operating Expense Increase or Estimate
Operating Expense Increase, or any other charges provided for hereunder, within
the time periods prescribed in this Lease shall not relieve Tenant of its
obligation to make such payments, which payments shall be made by Tenant at such
time as notice is subsequently given.
29. CAPTIONS: GOVERNING LAW.
The captions of this Lease are for convenience of reference only and
in no way define, limit or describe the scope or intent of this Lease. The laws
of the State of Georgia shall govern the validity, performance and enforcement
of this Lease.
30. SEVERABILITY.
Landlord and Tenant intend and believe that each provision in this
Lease is in accordance with all applicable local, state and federal laws and
judicial decisions. However, if any provision or provisions, or if any
portion of any provision or provisions, in this Lease is ultimately
determined by a court of law to be in violation of any local, state or
federal ordinance, statute, law administrative or judicial decision, or
public policy, and if such court shall declare such portion, provision or
provisions of this Lease to be invalid, unlawful, void or unenforceable as
written, then it is the intent both of Landlord and Tenant that such portion,
provision or provisions shall be given force to the fullest possible extent
that they are legal, valid and enforceable, that the remainder of this Lease
shall be construed as if such illegal, invalid, unlawful, void or
unenforceable portion, provision or provisions were not contained herein, and
that the rights, obligations and interests of Landlord and Tenant under the
remainder of this Lease shall continue in full force and effect, unless the
amount of Base Monthly Rental, Additional Rent or other charges payable
hereunder is thereby decreased, in which event Landlord may terminate this
Lease.
31. SUBORDINATION.
At the option of Landlord, Tenant agrees that this Lease shall remain
subject and subordinate to all present and future mortgages, deed to secure debt
or other security instruments (the "Security Deeds") affecting the Building or
the Premises, and Tenant shall promptly execute and deliver to Landlord such
certificate or certificates in writing as Landlord may request, showing
the subordination of the Lease to such Security Deeds, and in default of Tenant
so doing, Landlord shall be and is hereby authorized and empowered to execute
such certificate in the name of and as the act and deed of Tenant, this
authority being hereby declared to be coupled with an interest and to be
irrevocable. Tenant shall upon request from Landlord at any time and from time
to time execute, acknowledge and deliver to Landlord a written statement
certifying as follows: (i) that this Lease is unmodified and in full force and
effect (or if there has been modification thereof, that the same is in full
force and effect as modified and stating the nature thereof); (ii) that to the
best of its knowledge there are no uncured defaults on the part of Landlord (or
if any such default exists, the specific nature and extent thereof); (iii) the
date to which any rents and other charges have been paid in advance, if any; and
(iv) such other matters as Landlord may reasonably request. Tent irrevocably
appoints Landlord as its attorney-in-fact, coupled with an interest, to execute
and deliver, for and in the name of Tenant, any document or instrument provided
for in this Paragraph.
32. ATTORNEYS' FEES.
Tenant agrees to pay all attorneys' fees and expenses the Landlord
incurs in enforcing any of the obligations of Tenant under this Lease, or in any
litigation or negotiation in which Landlord shall, without his fault, become
involved though or on account of this Lease.
33. LIMITATION OF LIABILITY.
Landlord's obligations and liability to Tenant with respect to this
Lease shall be limited solely to Landlord's interest in the Building, and
neither Landlord nor any of the joint ventures of Landlord, nor any officer,
director, partner or shareholder of Landlord or any of the joint venturers of
Landlord, shall have any personal liability whatsoever with respect to this
Lease.
34. RULES AND REGULATION.
The rules and regulations (herein called the "Rules and Regulations")
printed upon this instrument on the attached Exhibit B shall be and are hereby
made a part of this Lease. Tenant, its employees and agents, will perform and
abide by said Rules and Regulations, and any amendments or additions to said
Rules and Regulations as may be made from time to time by Landlord.
35. PARKING.
At all times during the Term of this Lease, Landlord shall provide
Tenant's employees and visitors with unassigned parking at a ratio of 3 spaces
or 1,000 rentable square feet of office space leased, to include any expansion
space incorporated into the Premises after the commencement of the Term of this
Lease.
36. HAZARDOUS MATERIALS.
Tenant represents and warrants to Landlord that the Premises, or any
portion thereof, will not be used for the handling or storage of any "Hazardous
Materials" as such are generally defined with respect to current or future
environmental regulations and/or laws. Without limiting any other rights that
Landlord may have at law or in equity, Tenant hereby indemnifies Landlord and
agrees to hold Landlord harmless from and against all liens, demands, suits,
actions, proceedings, disbursements, liabilities, losses, litigation, damages,
judgments, obligations, penalties, injuries, costs, expenses (including, without
limitation, attorneys' and experts' fees) and claims of any and every kind
whatsoever paid, incurred, suffered by, or asserted against Landlord and/or the
Premises, Building and/or Building site for, with respect to, or as a direct or
indirect result of the failure by Tenant to comply with this Paragraph.
37. SPECIAL STIPULATIONS.
Insofar as the special stipulations, if any, set forth in the special
stipulations attachment to this Lease conflict with any of the foregoing
provisions, the special stipulations shall control. Such special stipulations
are expressly incorporated herein by this reference.
IN WITNESS WHEREOF, the parties hereto have herein set their hands and
seals, the day and year set forth opposite their respective signatures below,
effective as of the date first above written.
Signed, sealed and delivered by LANDLORD:
Landlord this_________day of
_______________,________in BEACON PROPERTIES, L.P.
the presence of: a Delaware limited partnership
By: Beacon Properties Corporation,
General Partner
By:
----------------------------------- -------------------------------
Unofficial Witness Xxxxxxx X. Xxxxxxxx,
Senior Vice President
-----------------------------------
Notary Public
My Commission Expires:
------------------
(NOTARIAL SEAL)
Signed, sealed and delivered by TENANT:
Tenant this_______day of
_______________,________in EN POINTE TECHNOLOGIES, INC.
the presence of:
By: (SEAL)
----------------------------------- ----------------------
Unofficial Witness Name:
-------------------------
Title:
------------------------
Attest: (SEAL)
----------------------------------- ------------------
Notary Public Name:
-------------------------
Title:
------------------------
My Commission Expires:
-------------
