1
EXHIBIT 10.11
COMMERCIAL LEASE
THIS AGREEMENT entered into this 1st day of March, 2000 between XXXXXX
X. XXXXX & CO., 0000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, its successors
and assigns, (hereinafter called the "Lessor" or "Landlord") and CATUITY
INCORPORATED (hereinafter called the "Lessee" or "Tenant").
WITNESSETH, Lessor does this day lease to Tenant the office space and
appurtenances as described on Exhibit "A" attached hereto, together with the
right to reasonably utilize common elements as described, to be used and
occupied as commercial office property by said Lessee, subject to the term and
conditions of this lease.
1. DESCRIPTION OF PREMISES: The Landlord lets and the Tenant hires
certain office space, to be used as a commercial business office, described on
Exhibit "A". The Tenant shall have the nonexclusive right to use certain COMMON
ELEMENTS/AREAS including but not limited to hails, entrances, grounds, parking
lot and public rest rooms, so long as such use does not unreasonably interfere
with co-tenants' use thereof. The Lessor shall make said leasehold available
during normal business hours, 7 a.m. to 7 p.m., or otherwise as arranged.
2. TERM: As described on Exhibit "A" attached hereto.
3. RENT: For the sum described on Exhibit "A" attached hereto, payable
in advance by the 1st day of each month (hereinafter "Due Date"). (See Late Fee
at Paragraph 17.)
4. USE AND OCCUPANCY: It is understood and agreed that the premises let
herein shall be used and occupied as a commercial business office and for no
other purposes without the written consent of the Landlord. Tenant further
covenants that he shall not carry out any activity which will be of an
inherently dangerous nature, and further, that Tenant's use will not be in
violation of any law, municipal ordinance or regulation, and that upon any
breach of this provision, the Landlord may terminate this Lease forthwith and
assert any remedies created hereby or pursuant to law.
a. RULES AND REGULATIONS: The Landlord may from time to time impose
reasonable rules and regulations regarding the Tenant's use of
the premises and the Tenant shall abide by and observe said
rules and regulations so long as same are commercially
reasonable and reasonable under the circumstances.
b. ENTRANCE - ACCESS: The Tenant and the customers, guests
2
and business invitees of the Tenant shall at all times use the
"front entrance" being the most southerly entrance door on or
about the leased premises.
5. SECURITY DEPOSIT: In addition to the rental amount stated on Exhibit
"A", the Lessee shall pay to the Lessor a security deposit in an amount stated
on Exhibit "A", and same shall be held by Landlord pursuant to law and cannot be
used as rent. Said security deposit will be returned to Tenant within ten (10)
days after vacating of the premises, but Lessor retains the right to charge
Lessee's account for any damage, unreasonable clean-up or other charges due
hereunder.
6. RENEWAL AND HOLDOVER TENANCY: The Lessee shall have first right of
refusal on successive years. If Lessee remains in possession of the leased
premises after the expiration of this initial Lease Term or any option term, he
may continue in possession and all the terms and conditions of this Lease shall
continue in full force and written notice will be required to terminate the
successive lease term. Rent during any such hold over period shall be at a
monthly rate equal to 110% of the rent for the last month of the then ending
lease term.
7. INSURANCE AND INDEMNITY: The Lessor agrees to maintain fire insurance
with extended coverage covering the building. The Lessee agrees to maintain
contents insurance aid to indemnify and hold harmless the Landlord from any
liability for damages to any person or property in, on or about said leased
premises from any cause whatsoever; and Tenant will procure and keep in effect
during the term hereof, public liability and property damage insurance for the
benefit of itself and the Landlord in the sum of One Million and 00/100
($1,000,000.00) dollars for damages resulting to one person and Five Hundred
Thousand and 00/100 ($500,000.00) dollars for damages resulting from one
casualty, and Twenty Five Thousand and 00/100 ($25,000.00) dollars property
damage insurance resulting from any one occurrence, Tenant shall deliver said
policies or certificate thereof to the Landlord: and upon Tenant's failure to do
so,
3
the Landlord may at his option obtain such insurance and the cost thereof shall
be paid as additional rent due and payable upon the next ensuing rent due day.
8. REPAIRS AND ALTERATIONS: The Landlord, after receiving written notice
from the Tenant and having reasonable opportunity thereafter to obtain the
necessary workmen therefor, agrees to keep in good order and repair the roof and
the four outer walls of the premises, the doors, door frames, the window glass,
window casings and window frames.
Except as provided above, the Tenant further covenants and agrees that
he will, at his sole expense, during the continuation of this lease, keep said
premises and every part thereof in good repair, and at the expiration of the
term, yield and deliver up same in like condition as when taken, reasonable use,
wear and tear thereof and damages by the elements excepted. The Tenant shall not
make any alterations, additions or improvements to said premises without the
Landlord's written consent; and all alterations, additions or improvements made
by either of the parties hereto upon the premises, except movable office
furniture and trade fixtures put in at the expense of the Tenant, shall be the
property of the Landlord and shall remain upon and be surrendered with the
premises at the termination of this lease without molestation or injury.
9. MAINTENANCE: The Lessor agrees to maintain the building affixed to
said land in a condition substantially the same as it now exists. The Lessee
agrees to maintain interior of the individual let office in a condition
substantially the same as it now exists with respect to general maintenance. The
Lessee further agrees to keep common areas free of nuisances and debris of
Lessee. Lessor shall provide limited janitorial service, reasonable (once a
week) trash removal and shall maintain the grounds, including landscaping and
snow removal, in a condition required in maintaining an office building.
10. UTILITIES: The Landlord agrees that he will pay all reasonable
charges for gas or oil for heating, and for water consumed on the premises or
any part thereof during the said term as they shall become due. Landlord shall
4
have the right to either pay the cost of electricity (which Lessor shall pay
initially), or to allocate the cost of electricity based upon square footage as
additional rent in the event that in Lessors sole discretion Tenant uses a
disproportionate amount of electricity, but landlord shall allocate and pay the
cost of electricity for common area square footage.
11. TAXES: Landlord shall pay all taxes, assessments and charges which
shall be assessed and levied upon the leased premises or any part thereof during
the said term as they shall become due.
12. LANDLORD'S ENTRY: Upon reasonable prior notice, the Lessor may enter
at all reasonable hours of the day and only in a commercially reasonable manner,
to inspect and/or make such repairs to the leased premises as the Lessor may
reasonably desire, without prosecution for such intrusion. The Lessor shall at
all times accord reasonable care to the Lessee's property.
13. OBSERVANCE OF LAWS: Tenant shall duly obey and comply with all
public laws, ordinances, rules or regulations relating to the use of the leased
premises; provided, however, that any installation of fire prevention apparatus,
electric rewiring, plumbing changes or structural changes in the building on the
lease premises, required by any such law, ordinance, rule or regulation, shall
be made by Landlord without expense to Tenant.
14. DEFAULT: "Default shall be defined as follows: failure by either of
the parties hereto to perform any covenant required to be performed by such
party under the terms and provisions of this lease, including Tenant's covenant
to pay rent by Due Date. Default shall automatically accelerate rent due, for
the full amount of rent due, during the term of this Lease, and allow Landlord
to demand and seize the security deposit made herewith. Tenant may not be liable
for entire accelerated amount because Landlord shall attempt to minimize damage,
by re-rental of the premises. Tenant hereby waives any notice of
5
acceleration.
15. EVICTION: In the event that Tenant fails to pay rent by the Due
Date, Landlord may at its option, serve upon Tenant a Notice to Quit, and both
Tenant and Landlord agree that eviction may be by Summary Proceedings. In
addition, Landlord may at its option use self-help and re-enter and repossess
the premises and remove and put out each and every occupant. So long as
Landlord's actions are reasonable and in accordance herewith, Tenant shall not
be entitled to any damages from Landlord on account of his re-entry.
16. TERMINATION BY REASON OF DEFAULT: In the event that Tenant fails to
pay rent seven (7) days after service upon Tenant of Notice to Quit, Landlord
may at its option, immediately terminate this lease and pursue all legal
remedies. In the event that either party defaults for any reason, other than
Tenant's nonpayment of rent, and such default continues for fifteen days after
service of notice upon the defaulting party by the non-defaulting party, this
lease may be terminated, at the option of the non-defaulting party, fifteen days
after service of the notice. Such termination shall not relieve the defaulting
party from liability to the other party for such damages as may be suffered by
reason of such default.
17. EXPENSES, DAMAGES LATE CHARGES AND INTEREST: Tenant hereby agrees to
pay Landlord expenses and costs, including payroll costs and actual attorneys
fees, reasonably incurred by Landlord but not to exceed $900.00, because of
Tenant's default and those fees resulting from any action for Summary
Proceedings against Tenant. The Landlord shall be entitled to, and Tenant agrees
to pay, interest on account of all rents past due 30 days from Due Date, same to
be charged at the rate of one and one half (1 1/2%) percent per month. Landlord
shall be entitled to and Tenant agrees to pay, a late fee of Twenty Five and
00/100 ($25.00) dollars if rent is not received within Fifteen (15) days of the
Due Date. Said interest charge and late fee shall be included as service charges
and be deemed part of additional rent. Any rent
6
check tendered to the Landlord returned by the bank shall obligate the Tenant to
pay the Landlord Twenty Five and 00/100 ($25.00) Dollars immediately upon
receipt of notice, plus reimbursement of Landlord's bank charges for the
returned check.
18. REMEDIES NOT EXCLUSIVE: It is agreed that each and every right,
remedy and benefit Provided by this lease shall be cumulative and shall not be
exclusive of any other right remedy and/or benefit allowed by law.
19. LANDLORD'S LIEN: Pursuant to Michigan Compiled Law 440.9101 and
440.9102 et. seq., the Landlord creates and retains hereby, as agreed to by the
Tenant herein, a lien for rents and charges due Landlord from Tenant on all of
the property, office furniture and equipment placed upon the premises let
hereby. In the event of Tenant's default in the payments and covenants
hereunder, the Landlord may assert his lien against said chattels and may
foreclose against same pursuant to law. Additionally, no property owned by
Tenant will be released or allowed to be removed from the premises while Tenant
is in default of any conditions herein.
20. RIGHT TO MORTGAGE, SELL AND SUBORDINATE: The Landlord reserves the
right to subject and subordinate this Lease at all times to any lien of any
mortgage or mortgages and, further, reserves the right to sell or otherwise
convey or hypothecate said premises, subject only to a thirty (30) day notice of
recession and notice that said Lease will not be renewed.
21. RISK OF LOSS: The Lessee shall completely and unequivocally, bear
the full risk of any loss or damage to any property stored pursuant to this
Lease on Lessor's property, and Tenant shall indemnify and hold Landlord
harmless from any loss, claim or suit, including the costs of defense and
attorney's fees to defend Landlord from any claim of any nature whatsoever.
7
Additionally, the Lessee shall indemnify and hold Lessor harmless from
any injury, loss or damage, including legal fees, or from any suit of any kind
or nature whatsoever sustained as a result of injury, loss or damage sustained
by any person who is in the employ of the Lessee or who is injured as a result
of Tenant's negligence, or any injury which is associated with the items stored
by Tenant hereunder, including but not limited to, those agents, subcontractors
or other persons appointed or otherwise authorized by the Lessor to enter the
let premises on behalf of Lessor.
22. CONDEMNATION: In the event that the leased premises shall be taken
for public use by the city, state, federal government, public authority or other
corporation having the power of eminent domain, then this lease shall terminate
as of the date on which possession thereof shall be taken for such public use,
or, at the option of Tenant, as of the date on which the premises shall become
unsuitable for Tenant's regular business by reason of such taking, provided,
however, that if only a part of the leased premises shall be so taken, such
termination shall be at the option of Tenant only. If such a taking of only a
part of the leased premises occurs and Tenant elects not to terminate the lease,
there shall be an proportionate reduction of the rent to be paid under this
lease from and after the date such possession is taken for public use. Tenant
shall have the right to participate, directly or indirectly, in any award for
such public taking to the extent that he may have suffered compensable damage as
a Tenant on account of such public taking.
23. ASSIGNMENT: Tenant may assign this lease or sublet the premises or
any part thereof for any legitimate use, only upon the written consent of
Landlord. Tenant shall remain liable as surety under the terms hereof
notwithstanding such assignment or sublease.
24. FIRE OR CASUALTY: In the event the premises shall be destroyed or so
damaged or injured by water, fire or other casualty during the life of this
agreement whereby the same shall be rendered untenantable, then the Lessor
8
shall have the right to render said premises tenantable by repairs within ninety
(90) days of said casualty without affecting Tenant's duties hereunder;
otherwise, the Tenant may cancel this lease, In the event of such cancellation,
the rent shall be paid only to the date of such fire or casualty. The
cancellation herein mentioned shall be evidenced in writing.
25. LESSEE DATA: The Lessee shall contemporaneously with the execution
hereof and prior to delivery of any personalty to the let premises, submit to
the Landlord personal information data on Exhibit "B" which shall be held in the
strictest confidence, by completing the form attached hereto. This information
will enable the Landlord to have relevant names, addresses and phone numbers so
that Landlord can, without liability, make reasonable inquiry into authority and
authorization of any agents or individuals of Lessee.
26. WAIVER AND SEVERABILITY: No waiver of any rights hereunder shall be
deemed as a continuing waiver, nor shall it in any way prejudice any rights or
remedies provided hereby. The terms, conditions and covenants in this agreement
are severable, and the invalidity of one shall in no way affect the enforcement
of others.
27. NOTICES: It is understood and agreed between the parties hereto that
written notice mailed or delivered to the premises leased hereunder, shall
constitute sufficient notice to the Lessee; and written notice mailed or
delivered to the office of the Lessor, shall constitute sufficient notice to the
Lessor to comply with the terms of this contract.
28. ACCEPTANCE OF PREMISES: Lessee hereby accepts the premises in the
condition they are in at the beginning of this lease and subject to the
provisions of paragraph 5 hereof and agrees to maintain said premises in the
same condition, order and repair as they are in at the commencement of said
term, excepting only reasonable wear and tear arising from the use thereof under
9
this agreement.
29. QUITE ENJOYMENT: As long as the Lessee pays the rent as provided
herein and otherwise performs all of the covenants and conditions to be
performed by the Lessee and abides by all the rules and regulations set forth
herein, Lessee shall have peaceful and quiet enjoyment of the demised premises
for the term of this lease.
30. LANDLORD'S RIGHT TO SHOW PREMISES: For a period of ninety (90) days
prior to the termination of this Lease, Landlord may enter upon the premises
during normal business hours to show the premises to prospective lessees and/or
purchasers, and for a period of sixty (60) days prior to the termination of this
lease, Landlord may display in and about the premises the usual "For Rent" or
"For Sale" signs.
31. LAW GOVERNING: This Agreement shall be interpreted and is written
pursuant to the laws of the State of Michigan, and the Michigan courts shall
retain jurisdiction of this matter.
32. MODIFICATION: No modification or waiver of any of the terms hereof
shall be valid unless in writing and signed by both parties. No waiver or any
breach thereof or default hereunder shall be deemed a waiver of any subsequent
breach or default of the same or similar nature.
IN WITNESS WHEREOF the parties have set their hands and seats to four
counter parts of this agreement, each of which shall constitute an original, as
of the date first written above.
WITNESS: LESSOR: XXXXXX X. XXXXX & CO.
------------------------- By: /s/ XXXXXX X. XXXXX, XX.
---------------------------------
Xxxxxx X. Xxxxx, Xx.
Its: President
10
------------------------- LESSEE: CATUITY INCORPORATED
By: /s/ XXXXXXX XXXX
------------------------ ---------------------------------
Its:
11
EXHIBIT "A"
To Lease between XXXXXX X. XXXXX & CO. and CATUITY INCORPORATED
Dated: March 1, 2000
Office Number: #205 and #207
Parking Spaces: Two (2) (General guest parking is available)
Monthly Rental: $800.00/month
Term: Twelve (12) Months
Commencing: March 1, 2000
Security Deposit: $2,400.00
Option to Renew: If the Tenant is not then in default said Tenant
shall have the option to renew this lease for an additional one year
term at the following monthly rental:
$800.00/month
Tenant shall give Landlord written notice of its intention to exercise
this renewal option, not less than 30 days prior to the expiration of
the initial 12 month lease term. In the event Tenant does not give 30
day renewal notice, tenant may extend the lease monthly for $880/month
for up to 12 additional months. Tenant may also extend the lease if the
2nd year is extended, for a 3rd or 4th year. In the event of a 3rd or
4th year extension, the rental rate shall be $800/month times the U.S.
Department of Commerce CPI-U Index for February, 2002 divided by
February, 2000 for the 3rd year; and $800/month times the said Index for
February, 2003 divided by February, 2000 for the 4th year, should the
Lease be so extended.
12
EXHIBIT "B"
LESSEE DATA AND RELEASE
To Lease between XXXXXX X. XXXXX & CO. and CATUITY INCORPORATED
Dated: March 1, 2000
Name: CATUITY INCORPORATED
If Individual Social Security/EIN Number:_______________________
Banking Data: Account Number(s):_________________ (Checking)
Name of Bank:
Lessee hereby authorizes said bank or financial institution to release
credit information and account history of Lessee to XXXXXX X. XXXXX &
CO.
Date: March 1, 2000
Name/Signature:
---------------------
Title:
