EXHIBIT 10.30
LEASE AGREEMENT
STATE OF TEXAS
COUNTY OF DALLAS
THIS AGREEMENT, entered into this 10th day of March, 1998, between:
LANDLORD
Montfort Park Office Building herein designated as Landlord, and
TENANT
NetVoice Technologies, LLC herein designated as Tenant.
LEASED PREMISES
Landlord, in consideration of covenants and agreements to be performed
by Tenant and upon terms and conditions hereinafter stated, does hereby
lease to Tenant suite number(s) 101 on floor(s) One of the building known
as the Montfort Park Office Building, located at 00000 Xxxxxxxx Xxxxx
(hereinafter called the "Leased Premises") on a tract of land situated in
the City of Dallas, State of Texas, as described in Exhibit A attached
hereto. The number of square feet contained in the Leased Premises is
approximately 2021 square feet.
4. TERM
For term of Thirty six months, beginning on March 23, 1998 and ending
on March 31, 2001, to be continuously used and occupied during term of this
Lease by the Tenant for no other purpose than:
5. USE
_____________________________________________________________________.
This is conditioned upon faithful performance by Tenant of the following
agreements, covenants, rules, and regulations, herein set out and agreed to
by Tenant.
6. BASE RENTAL
In consideration of this Lease, Tenant promises to pay Landlord at
office of Landlord, in Dallas, Texas, the sum of One Hundred Ten Thousand
and Thirteen Dollars ($110,013.00) in lawful money of the United State of
American, payable in monthly amounts of Three Thousand and Thirty One
Dollars and Fifty Cents ($3031.50), in advance, without demand, on the
first day of each and every calendar month during term thereof, provided,
however, that the first three such monthly rental payments shall be due
upon execution of this Lease. The base rental stated herein shall be
subject, however, to adjustment as provided in Section 7 of this Lease.
Should the term of this Lease begin on a day other than the first day of a
calendar month or terminate on a day other than the last day of a calendar
month, the rent for such partial month shall be proportionately reduced.
All rent and sums provided to be paid under this Lease shall be paid to
Landlord at the address stated in section 38 of this Lease.
7. BASE RENTAL ADJUSTMENT
The Base Rental hereunder payable shall be adjusted from time to time
in accordance with the following provisions:
A. As used herein:
(a) "Base Costs" shall have the same meaning as defined in Paragraph
8 below.
(b) "Base Year" shall mean the calendar year 1998.
(c) "Tenants" Proportionate Share" shall mean a fraction of which the
numerator is the rentable area of the Demised Premises and the
denominator is the total rental area of the Building. For the
purposes of this Lease the rental area of the Demised Premises
and of the building shall be deemed to be 2021 square feet and
78,134 square feet, respectively, and Tenant's Proportionate
Share may be expressed as a percentage (i.e. 2.6%).
B. If the Basic Costs for any calendar year subsequent to the Base
Year shall be greater than the Basic Costs for the Base Year, Tenant shall
pay as additional rent for such subsequent calendar year a sum equal to
Tenant's Proportionate Share of which the Basic Costs for such subsequent
calendar year are greater than the Basic Costs for the Base Year (which
amount is hereinafter called the "Basic Costs Payment"). Should this Lease
terminate prior to the expiration of a calendar year, the Basic Costs
Payment shall be prorated to the date of such termination and shall be
payable on, or as when ascertained after such termination. Tenant's
obligation to pay the Basic Costs Payment shall survive the termination of
this Lease.
C. On or before January 1 (or as soon thereafter as possible) of
each calendar year, Landlord shall furnish to Tenant a written statement of
Landlord's estimate of the Basic Costs for that current calendar year. At
the monthly rent payment next following Tenant's receipt of such statement,
and on each subsequent monthly rent payment in that current calendar year,
Tenant shall pay to Landlord as additional rent an amount equal to 1/12 of
Tenant's Proportionate Share of the amount by which the estimated Basic
Costs for such subsequent calendar year are greater than the Basic Costs
for the Base Year.
D. On or before April 1 (or as soon thereafter as possible) of each
calendar year, Landlord shall render to Tenant a comparative statement
("Statement") showing the Basic Costs for the Base Year, the Basic Costs
for the preceding calendar year, the estimated Basic Costs Payment made by
the Tenant for the preceding calendar year pursuant to paragraph (C) above,
and the balance of the Basic Costs Payment, if any, which shall be
immediately due and payable from the Tenant to the Landlord for the
preceding calendar year, indicating thereon in reasonable detail the
computation of such Basic Costs Payment. If Tenant's estimated Basic Costs
Payment shall exceed the actual Basic Costs Payment for the preceding year,
Landlord shall credit the excess payment to Tenant.
8. BASIC COSTS DEFINED
"Basic Costs" as used herein shall consist of all operating expenses
of the Building and shall consist of all expenditures by Landlord to
maintain all facilities as may be determined by Landlord to be necessary or
beneficial for the operations of the Building and all related parking
facilities (the "Complex"). All operating expenses shall be determined in
accordance with generally accepted accounting principles which shall be
consistently applied. The term "operating expenses" as used herein shall
mean all expenses, costs, and disbursements (but not replacement of capital
investment items nor specific costs especially billed to and paid by
specific tenants) of every kind and nature which Landlord shall pay or
become obligated to pay because of or in connection with the ownership and
operation of the Complex, including, but not limited to, the following:
(a) Wages, salaries, and fees of all personnel engaged in the
operation, maintenance, leasing, or security of the Complex and
personnel who may provide traffic control relating to ingress and
egress from the parking areas for the Building to the adjacent
public streets. All taxes, insurance, and benefits relating to
employees providing these services shall also be included.
(b) All supplies and materials used in the operation and maintenance
of the Complex.
(c) Cost of all utilities for the Complex.
(d) Cost of all maintenance, janitorial, and service agreements for
the Complex and the equipment therein, including alarm service,
window cleaning, and elevator maintenance.
(e) Cost of all insurance relating to the Complex, including the cost
of casualty and liability insurance applicable to the Complex and
Landlord's personal property used in connection therewith.
(f) All taxes, assessments, and other governmental charges, whether
federal, state, county, or municipal, and whether they be by
taxing districts or authorities presently taxing the Premises or
by others, subsequently created or otherwise, and any other taxes
and assessments attributable to the Complex or its operation. It
is agreed that Tenant will be responsible for ad valorem taxes on
its personal property and on the value of leasehold improvements
to the extent that same exceed standard Building allowances.
LATE CHARGE
Tenant agrees to pay Landlord an additional amount of 5% of any sum
owing by Tenant under this Lease if such sum is not in Landlord's office or
postmarked by midnight of the 10th day following the date on which such sum
became due for the extra expenses involved in handling delinquent payments.
A $20.00 charge will be assessed by Landlord for every returned check.
Rent will be considered unpaid and lease in default if sufficient funds are
not available to cover payment.
9. SERVICE BY LANDLORD
Landlord agrees to furnish Tenant, while occupying premises, water -
hot, cold and refrigerated - at those points of supply provided for general
use of tenants; electric current for ordinary office use; heated and
refrigerated air conditioning in season, at such times as
Landlord normally furnishes these services to all tenants of building, and
at such temperatures and in such amounts as are considered by Landlord to
be standard, such service on Saturdays, Sundays, and holidays to be
optional on part of Landlord; elevator and janitor service and electric
lighting service for all public areas and special service areas of building
in the manner and to the extent deemed by Landlord to be standard; but
failure to furnish or any interruption of these services, from any cause
whatsoever, shall not make Landlord liable for damage or loss to persons,
property, or Tenant's business; shall not be considered an eviction of
Tenant; shall not entitled Tenant to any refund or reduction of rent, and
shall not relieve Tenant from compliance with any term or provision of this
Lease. Landlord shall use reasonable diligence to repair promptly any
malfunction of the building improvements or facilities but Tenant shall
have no claim for rebate or abatement of rent for damages resulting from
such repair or from any interruptions in service occasioned by such repairs.
10. PAYMENTS AND PERFORMANCE
Tenant agrees to pay all rents and all other sums required to be paid
to Landlord at the times and in the manner provided in this Lease. The
obligations of Tenant to pay rent is an independent covenant and under no
circumstances shall Tenant be released from its obligation to pay rent.
11. REPAIRS AND RE-ENTRY
Tenant will maintain the Leased Premises in sound condition, at
Tenant's own expense, and shall repair, using only contractors approved by
Landlord, any damage done to the building by Tenant or Tenant's agents,
employees, and invitees. If Tenant fails to make such repairs promptly,
within 15 days of occurrence, Landlord shall have the option to make such
repairs itself and Tenant shall reimburse Landlord for the cost of repairs
on demand. Tenant shall not commit nor allow any waste or damage to be
committed on any part of the Leased Premises, and at the time of
termination of the Lease shall deliver the Leased Premises to Landlord in
good condition as existed on the date of Tenant's possession, ordinary wear
and tear excepted, and Landlord shall have the right to re-enter and resume
possession.
ASSIGNMENT - SUBLETTING
Tenant shall not assign or mortgage this Lease or any right under or
interest in it; allow same to be assigned by operation of law or otherwise;
sublet the Leased Premises or any part thereof, or allow any other person
to occupy or use the Leased Premises or any part thereof in place of Tenant
without the prior written consent of Landlord which shall not be
unreasonably withheld. Any such assignment, mortgage, or subletting
without Landlord's consent shall be void and shall, at Landlord's option,
constitute a breach of this Lease. Notwithstanding approval by Landlord of
a subletting or assignment by Tenant, Tenant, any guarantor of Tenant's
obligations under this Lease, and each assignee and subtenant shall remain
fully responsible and liable for payment of the rent required under this
Lease and for compliance with all of Tenant's other obligations. Consent
of Landlord to any assignment, mortgage, or subletting shall constitute
approval only as to that specific assignment, mortgage, or subletting, and
none other.
13. ALTERATIONS AND ADDITIONS BY TENANT
Tenant shall make no alterations, additions, or improvements to the
Leased Premises, including the installation of trade fixtures, without the
prior consent of Landlord. Landlord may impose, as a condition of its
consent, requirements as to the manner in which, the times at which, and
the contractor by whom such work shall be done. All such alterations,
additions, or improvements, including trade fixtures, shall be made by
Tenant at its sole cost and expense, shall be part of the building, shall
become the property of the Landlord at the time they are placed on the
Leased Premises and shall be surrendered with the Leased Premises upon
termination of this Lease. Landlord may, however, by written notice to
Tenant at least 30 days prior to the end of the term, require Tenant to
remove all partitions, counters, railing, and the like installed by Tenant
and to repair any damage to the premises caused by such removal. Tenant
agrees to indemnify and hold Landlord harmless from and against any and all
claims for mechanics, and materialmen or other liens in connection with any
alterations, additions, or improvements, including trade fixtures. Tenant
will be required to escrow funds for all alterations and additions with
Landlord. In addition, Tenant shall furnish such waiver or waivers of lien
in form and with surety satisfactory to Landlord before commencing any work
on such alterations, additions, or improvements, including trade fixtures.
Landlord shall approve all contractors and subcontractors prior to
commencement of work. Landlord reserves the right to enter the Leased
Premises for the purpose of posting any notices of nonresponsibility as may
be permitted by law or desired by Landlord.
14. LEGAL USE - VIOLATIONS OF INSURANCE COVERAGE - NUISANCE
Tenant will not use the Leased Premises to be used for any purpose
other than that stated in this Lease or for any purpose which is unlawful;
disreputable; or extra-hazardous on account of fire, explosion, or other
casualty; nor permit any act which would increase the fire and casualty
insurance on the building or its contents. If insurance rates on the
building or its contents are increased due to action, conduct, or business
of Tenant, Tenant will pay such amount of insurance rate increase to
Landlord on demand. Tenant will not create a nuisance, interfere with,
annoy or disturb other tenants or Landlord, nor allow Tenant's agents,
employees, or invitees to do so.
15. LAWS AND REGULATIONS
Tenant will maintain the Leased Premises in a clean and healthful
condition and will comply with all laws, ordinances, orders, rules, and
regulations of any governmental authority having jurisdiction over the use,
conditions, or occupancy of the Leased Premises.
16. INDEMNITY AND LIABILITY
By moving into the Leased Premises, Tenant acknowledges that the
premises are received by it in a good state of repair, accepts the premises
as suitable for the purposes for which same are leased, waives any and all
defects of the premises and assumes all risks of damage to persons,
property, or Tenant's business. Landlord shall not be liable
for any injury to person, damage, or property or to Tenant's business
arising from any acts or omissions of Landlord or from any cause whatsoever
except Landlord's gross negligence or willful wrong. Tenant will indemnify
and hold Landlord harmless from all suits, damages, liability, and expense
in connection with loss of life, bodily or personal injury or property
damage arising from any occurrence upon the Leased Premises, from use or
occupancy by Tenant of the Leased Premises, and from any acts or omissions
of Tenant, its agents, contractors, employees, or invitees. In addition,
if Landlord should, without fault on its part, be made a party to any
action by or against Tenant, Tenant shall pay all costs, expenses, and
reasonable attorney's fees of Landlord.
17. RULES OF BUILDING
Tenant, Tenant's agents, employees, and invitees will comply fully
with all building rules and regulations which are attached to this Lease
and made a part of its by this reference. Landlord may amend or change the
rules and regulations as it may deem advisable to provide for the safety,
protection, care, and cleanliness of the building, and Landlord shall give
Tenant a written copy of all such rules and amendments.
18. ENTRY FOR REPAIRS AND INSPECTION
Landlord and its agents and representatives may enter the Leased
Premises at any reasonable hour or at any time during emergencies to
inspect, clean and make repairs, alterations or additions as Landlord deems
necessary. Tenant will not be entitled to a reduction or an abatement of
rent due to Landlord's entry for such purposes.
19. CONDEMNATION
If the Leased Premises shall be taken or condemned in whole or in part
for public purposes, or transferred by agreement with or under threat of
condemnation, this Lease shall, at Landlord's option, terminate at the time
the title is transferred. Tenant shall not be entitled to any portion of
the condemnation award or of any compensation paid for any transfer by
agreement.
20. LANDLORD'S LIEN AND SECURITY INTEREST
In addition to the Landlord's lien provided by law, Landlord shall
have, and Tenant hereby grant to Landlord, a security interest in all
goods, furniture, fixtures, equipment, supplies, and other property of
Tenant on the Leased Premises, and all proceeds thereof, as security for
all Tenant's obligations under this Lease. Tenant shall have the right,
however, to sell its merchandise in the normal course of business free of
this lien and security interest. Tenant shall not remove any of such
property from the Leased Premises until it has fully satisfied its
obligations under this Lease. Any requirement of reasonable notice to
Tenant of Landlord's intention to dispose of any of Tenant's property to
enforce this security interest shall be satisfied by notice given in the
manner prescribed in Section 38 of this lease at least 5 days before the
time of such disposition. Any such sale to enforce Landlord's security
interest shall be deemed to have been a public sale conducted in a
commercially reasonable manner
if held on the Leased Premises after advertisement of the time, place and
method of sale and a general description of the property commercially
reasonable manner if held on the Leased Premises after advertisement of the
time, place and method of sale and a general description of the property to
be sold in Dallas County, Texas daily newspaper for 5 consecutive days
prior to the sale, Landlord shall have all rights and remedies of a secured
party under law.
21. ABANDONED PROPERTY
All of Tenant's furniture, movable trade fixtures and personal
property not removed from the Leased Premises within 5 days of Landlord's
written request at the termination of this Lease, whether such termination
occurs by lapse of time or otherwise, shall be conclusively presumed
abandoned by Tenant, and Landlord may declare such property to be the
property of Landlord or may dispose of the property by any method it deems
advisable. Landlord's rights under this paragraph shall be cumulative of
its rights under Section 20 above.
22. HOLDING OVER
It is agreed and understood that any holding over by Tenant of the
Leased Premises at the termination of this Lease, whether such termination
occurs by lapse of time or otherwise, shall be construed as a tenancy at
will at a daily rental equal to 1/30th of an amount equal to twice the
monthly rental payable during the last month prior to termination of this
Lease. Such tenancy shall be subject to all other terms and provisions of
this Lease except any right of renewal.
23. CASUALTY
In the event the Leased Premises are damaged by fire or other casualty
covered by Landlord's insurance, Landlord shall repair the damage at its
expense within a reasonable time. If the damage cannot be repaired within
180 days (as estimated by an architect chosen by Landlord), this Lease may
be terminated by either Landlord or Tenant by written notice within 30 days
after receipt of the architect's damage certification and shall then
terminate as of the date such notice is given. Tenant shall pay all rent
due under this Lease, prorated on the date of such notice, and all other
sums owing at that time and shall immediately surrender possession of the
Leased Premises to Landlord.
However, if the damage can be repaired within 180 days or if it cannot
be repaired within such time but neither party exercises its option to
terminate this Lease, Landlord shall, within 30 days of such damage, begin
to repair the Leased Premises and shall proceed with reasonable diligence
to restore the Leased Premises in the same condition as existed immediately
prior to the occurrence of such casualty. The rent shall be abated during
the time the premises are unfit for occupancy. Landlord shall not be
required to rebuild, repair, or replace any of the furniture, equipment,
fixtures or other improvements which may have been placed on the Leased
Premises by Tenant. In the event any mortgagee under a deed of trust,
security agreement, or mortgage on the building should require that the
insurance proceeds be used to retire the mortgage debt, Landlord shall have
no obligation to rebuild and this Lease shall terminate upon
written notice to Tenant. In the event the building is so badly damaged by
fire or other casualty, even though the Leased Premises may not be
affected, that Landlord decides, within 90 days after the destruction, not
to rebuild or repair the building (such decision being vested exclusively
in the discretion of Landlord), then in such event Landlord shall so notify
Tenant in writing and this Lease shall terminate as of the time such notice
is given, and the Tenant shall pay rent hereunder apportioned to the time
such notice is given and shall pay all other obligations of Tenant owing on
the date of termination, and Tenant shall immediately surrender the Leased
Premises to Landlord. Notwithstanding the foregoing provisions of this
Section 23, Tenant agrees that if the Leased Premises or any other part of
the building is damaged by fire or other casualty caused by the fault or
negligence of Tenant or Tenant's agents, employees, or invitees, Tenant
shall have no option to terminate this Lease, even if the damage cannot be
repaired within 180 days, and the rent shall not be abated or reduced befor
or during the repair period.
24. FORCE MAJEURE
In the event Landlord shall be delayed, hindered, or prevented from
the performance of any act required by this Lease by reason of acts of God;
acts of common enemies; fire, storm, flood, explosion or other casualty;
strikes, lockouts; labor disputes; labor troubles; inability to procure
materials; failure of power; strictive governmental laws or regulations;
riots; insurrection; war; settlement of losses with insurance carriers;
injunction; order of any court or governmental authority or other cause not
within the reasonable control of Landlord, then the performance of said act
shall be excused for the period of the delay and the period for the
performance of any such act shall be extended for a period equivalent to
the period of such delay.
25. INSURANCE
A. Subrogation: Landlord and Tenant hereby waive and release any
and all rights, claims, demands, and causes of action each may have against
the other on account of any loss or damage occasioned to Landlord or to
Tenant as the case may be, their respective businesses, properties, real
and personal, the Leased Premises or its contents, arising from any risk or
peril covered by any insurance policy carried by either party. Inasmuch as
the above mutual waivers will preclude the assignment of any aforesaid
claim by way of subrogation (or otherwise) to an insurance company (or any
other person), each party hereby agrees immediately to give to its
respective insurance companies written notice of the terms of said mutual
waivers, and to have said insurance policies properly endorsed if
necessary, to prevent the invalidation of said insurance coverage by reason
of said waivers. This provision shall be cumulative of Section 16.
B. Liability Insurance: Tenant shall procure and maintain
throughout the term of this lease a policy or policies of insurance, at its
sole cost and expense, insuring Tenant and Landlord against any and all
liability for property damage or injury to or death of a person or persons
occasioned by or arising out of or in connection with the use or occupancy
of the Leased Premises, the limits of such policy or policies to be in an
amount not less than $1,000,000 with respect to injuries to or death of any
one person, in an amount not less than
$1,000,000 with respect to any one accident or disaster, and in an amount
not less than $100,000 with respect to all property in the premises damaged
or destroyed for which Tenant is legally liable. The limit of said
insurance shall not, however, limit the liability of the Tenant hereunder.
Tenant shall furnish evidence satisfactory to Landlord of the maintenance
of such insurance and shall obtain a written obligation on the part of each
insurance company to notify Landlord at least 10 days prior to cancellation
of such insurance.
26. TRANSFER OF LANDLORD'S RIGHTS
Landlord shall have the right to transfer and assign, in whole or in
part, all and every feature of its rights and obligations under this Lease
and in the building and property referred to in this Lease. In such event
Landlord shall be released from any further obligation under this Lease and
Tenant agrees to look solely to Landlord's successor for the performance of
such obligations.
27. BANKRUPTCY
Bankruptcy, insolvency, or inability to pay its debts as such become
due of Tenant or any guarantor of this Lease; filing by or against Tenant
or any guarantor in any court pursuant to any statute either of the United
States or of any State of a petition in bankruptcy or insolvency or for
reorganization, arrangement, or for the appointment of a receiver or
trustee of all or a portion of Tenant's or any such guarantor's property;
or the making by Tenant or any such guarantor of an assignment for the
benefit of creditors, shall constitute a default by Tenant under this
Lease. Tenant shall then immediately surrender the Leased Premises to
Landlord. If Tenant fails to do so, Landlord may expel or remove Tenant
and its property and retake possession of the Leased Premises without
liability for any prosecution or any claim for damages by reason of such
re-entry. Tenant further agrees to indemnify Landlord for all loss and
damage suffered by Landlord by reason of such termination, including loss
of rental for the remainder of the lease term.
28. DEFAULT
The following shall constitute events of Default under this Lease:
(a) Tenant's failure to pay rent and other sums payable by Tenant under
this Lease when due.
(b) Tenant's failure to comply with other provisions of this Lease.
(c) Tenant's desertion or abandonment of a substantial part of the Leased
Premises.
(d) Any transfer of property by Tenant the purpose of which might tend to
defeat the collection of rent due or to become due under this Lease.
29. REMEDIES
A. Upon the occurrence of any of the events of Default listed in
Section 28 above, Landlord shall have the option to take any one or more of
the following actions without notice or demand in addition to and not in
limitation of any other remedy permitted by law or by this Lease:
(1) Terminate this lease, at which time Tenant shall immediately
surrender the Leased Premises to Landlord. If Tenant fails to do
so, Landlord may expel or remove Tenant and its property and
retake possession of the Leased Premises without liability for
any prosecution or any claim for damages by reason of such
re-entry. Tenant further agrees to indemnify Landlord for all loss
and damage suffered by Landlord by reason of such termination,
including loss of rental for the remainder of the lease term.
(2) Enter upon and take possession of the Leased Premises as Tenant's
agent without terminating the Lease and without liability for
prosecution of any claim for damages by reason of such re-entry,
and relet the Leased Premises as Tenant's agent and receive rent
therefor. Tenant agrees to pay Landlord on demand for any costs
incurred by Landlord through such reletting, including costs of
renovating or repairing the Leased Premises for a new tenant and
for any deficiency that may arise between amount of rent due for
the remainder of Tenant's lease and that received by Landlord
from reletting the Leased Premises. It is expressly understood
and agreed, however, that Landlord shall have no duty to relet
the Leased Premises and Landlord's failure to do so shall not
release or affect Tenant's liability for rent or damages.
(3) Landlord may do whatever Tenant is obligated to do under the
terms of this Lease and in order to accomplish this purpose
Landlord may enter the Leased Premises without liability for
prosecution of any claim for damages therefor. Tenant shall
reimburse Landlord for any expenses Landlord may incur in
effecting compliance with this Lease on Tenant's behalf. Tenant
further agrees that Landlord shall not be liable for any damages
which may result to Tenant from such action by Landlord, whether
caused by Landlord's negligence or otherwise.
B. Upon the occurrence of the default event stated in Section 28(a)
above, Landlord shall have the option, in addition to and not in limitation
of any other remedy permitted by law or by this Lease, of declaring the
entire amount of rent for the remainder of the lease term due and payable
immediately; without terminating the Lease, as liquidated and agreed
damages for the payment of costs and expenses that Landlord will incur in
regaining possession, restoring, or reletting the Leased Premises. It is
understood and agreed that the actual determination of Landlord's costs and
expenses is not feasible and that the amount of rent for the remainder of
the lease term represents a reasonable estimate of such costs.
30. NO WAIVER
No action by Landlord or its agents shall constitute an acceptance of
an attempted surrender of the Leased Premises and no agreement to accept
such a surrender of the Leased Premises shall be valid unless in writing.
Re-entry of the Leased Premises by Landlord shall not constitute an
election by Landlord to terminate this Lease
unless Landlord so notifies Tenant in writing. Acceptance of rent by
Landlord following the occurrence of an event of default shall not waiver
such default, nor shall the receipt by Landlord of rent from any assignee,
subtenant or occupant of said premises other than Tenant be deemed a waiver
of Section 12 of this Lease. Landlord's waiver of any default or breach of
the terms of this Lease (including any violation or failure to enforce the
Building Rules attached hereto) or failure by Landlord to enforce one or
more of the remedies provided herein upon such default or breach shall not
constitute a waiver of any other default or breach of this Lease. No
provision of this Lease shall be deemed waived by Landlord unless evidenced
in writing. Landlord's rights and remedies under this Lease shall be
cumulative of every other right or remedy Landlord may have otherwise at
law or in equity, and Landlord's exercise of one or more of the rights or
remedies shall not bar or in any way impair Landlord's exercise of other
rights and remedies.
31. SUBORDINATION
This Lease and all rights of the Tenant hereunder are subject and
subordinate to any deeds of trust, mortgages or other instruments of
security which do now or may hereafter cover the building and the land or
any interest of Landlord therein, and to any and all advances made on the
security thereof, and to any and all increases, renewals, modifications,
consolidations, replacements and extensions of any of such deeds of trust,
mortgages or instruments of security. This provision is hereby declared by
Landlord and Tenant to be self-operative and no further instrument shall be
required to effect such subordination of this lease. Tenant shall,
however, from time to time, upon demand, execute, acknowledge and deliver
to Landlord any and all instruments and certificates that in the judgment
of Landlord may be necessary or proper to confirm or evidence such
subordination, and Tenant hereby irrevocably appoints Landlord as Tenant's
agent and attorney-in-fact for the purpose of executing, acknowledging and
delivering any such instruments and certificates. This Lease and all
rights of Tenant hereunder are further subject and subordinate to all
ground or primary leases in existence at the date hereof and to any and all
supplements, modifications and extensions thereof heretofore or hereafter
made. However, notwithstanding the foregoing provisions of this Section
31, Tenant agrees that any such mortgagee shall have the right at any time
to subordinate any such deeds of trust, mortgages or other instruments of
security to this Lease on such terms and subject to such conditions as such
mortgagee may deem appropriate in its discretion. Tenant further agrees,
upon demand by Landlord's mortgagee at any time, before or after the
institution of any proceedings for the foreclosure of any such deeds of
trust, mortgages or other instruments of security, or sale of the building
pursuant to any such deeds of trust, mortgages or other instrument of
security, to attorn to such purchaser upon any such sale and to recognize
such purchaser as Landlord under this Lease. This agreement of Tenant to
attorn upon demand of Landlord's mortgagee shall survive any such
foreclosure sale or trustee's sale. Tenant shall upon demand at any time
or times, or after any such foreclosure sale or trustee's sale, execute,
acknowledge and deliver to Landlord's mortgagee any and all instruments and
certificates that in the judgment of Landlord's mortgagee may be necessary
or proper to confirm or evidence such attornment, and Tenant hereby
irrevocably appoints Landlord's mortgagee at Tenant's agent and
attorney-in-fact for the purpose of executing, acknowledging and delivering
any such instruments and certificates.
32. ESTOPPEL CERTIFICATES
Tenant agrees to furnish from time to time when requested by Landlord or
the holder of any deed of trust or mortgage covering the land and building
or any interest of Landlord therein, a certificate signed by Tenant to the
effect that this Lease is then presently in full force and effect and
unmodified; that the term of this Lease has commenced and the full rental
is then accruing hereunder; that Tenant has accepted possession of the
Leased Premises and that any improvements required (if any) by the terms of
this Lease to be made by Landlord have been completed to the satisfaction
of Tenant; that no rent under this Lease has been paid more than 30 days in
advance of its due date; that the address for notices to be sent to Tenant
is as set forth in this Lease; that Tenant, as of the date of such
certificate, has no charge, lien or claim of offset under this Lease or
otherwise against rents or other charges due or to become due hereunder;
and that to the knowledge of Tenant, Landlord is not then in default under
this Lease. The certificate shall also contain an agreement by Tenant with
such holder that from and after the date of such certificate, Tenant will
not pay any rent under this Lease more than 30 days in advance of its due
date, will not surrender or consent to the modification of any of the terms
of this Lease nor to the termination of this Lease by Landlord, and will
not seek to terminate this Lease by reason of any act or omission of
Landlord until Tenant shall have given written notice of such act or
omission to the holder of such deed of trust or mortgage (at such holder's
last address furnished to Tenant) and until a reasonable period of time
shall have elapsed following the giving of such notice; during which period
such holder shall have the right, but shall not be obligated, to remedy
such act or omission; provided, however, that (i) the agreement of Tenant
described in this sentence will be of no effect under such certificate
unless Tenant is furnished by such holder with a copy of any assignmentto
such holder of Landlord's interest in this Lease within 120 days after the
date of such certificate, and (ii) the agreement of Tenant with such holder
that is embodied in such certificate shall terminate upon the subsequent
termination of any such assignment.
33. JOINT AND SEVERAL LIABILITY
The obligations imposed upon Tenant (if more than one) under this
Lease shall be joint and several. If Tenant has a guarantor, the
obligations of Tenant under this Lease shall be joint and several
obligations of Tenant and guarantor. Landlord may proceed against
guarantor without first proceeding against Tenants, and no guarantor shall
be released from its guaranty for any reason, including, but not limited
to, any amendment of this Lease, any waiver of Landlord's rights, failure
of Landlord to give Tenant or any guarantor any notices, or release of any
party liable for payment and performance of Tenant's obligations under this
Lease.
34. ATTORNEY'S FEES
If Landlord brings any action under this Lease or consults or places
this Lease or any amount payable under it with an attorney for
the enforcement of any of Landlord's rights under this Lease, Tenant agrees
in each case to pay Landlord reasonable attorney's fees and other costs and
expenses incurred by Landlord in connection therewith.
35. QUIET POSSESSION
Landlord hereby covenants that Tenant, upon payment of rent as
provided under this Lease and performing all other agreements contained in
this Lease, shall and may peacefully have, hold and enjoy the Lease Premises.
36. BUILDING NAME
Tenant may use the present name of the building in the name of its
business and in its business address, provided, however, that Landlord
reserves the right to change the name of the building at any time without
prior notice to Tenant. Tenant agrees to immediately cease use of the
building name in connection with its business upon termination of this
Lease, by lapse of time or otherwise.
37. PARKING
Landlord reserves the right to designate specific areas and spaces
within which Tenant, Tenant's employees, agents, visitors and customers may
park. Tenant shall not, however, be entitled to exclusive use of such
designated parking spaces (unless granted such right by Landlord in
writing) and Landlord may, in its sole discretion, reassign the location of
such parking spaces at any time. Landlord further reserves the right to
promulgate rules and regulations for the use of all parking areas at any
time during the term of this Lease. Notwithstanding any foregoing
provision of this Section 37, Landlord shall have the right to designate
any parking area or space for the exclusive use of a tenant or other person
or persons. Tenant agrees that it will employ its best efforts to present
the use by Tenant's employees, agents, visitors and customers of parking
spaces allocated to other tenants.
38. NOTICES
Any notice required or permitted to be given by one party to the other
under this Lease shall be in writing and shall be effective when deposited
pursuant herein with the United States Mail, Certified or Registered Mail,
Return Receipt Requested, postage prepaid, addressed as follows:
If to LANDLORD: If to TENANT:
ontfort Park Office Building Netvoice Technologies
C/O Trinity Interests, 00000 Xxxxxxxx Xx., #000
00000 Xxxxx Xxxxx, Xxx 0000 Xxxxxx, XX 00000
Xxxxxx, XX 00000 Attn: Xxxxxxx Xxxxx
Attn: Xxxxxxx Xxxxxx
Either party may change its address as designated above by written notice
to the other party.
39. FINANCIAL STATEMENTS
Tenant shall furnish Landlord from time to time, when requested by
Landlord, an annual statement of financial condition of Tenant prepared in
a form reasonably satisfactory to Landlord.
40. LEASEHOLD IMPROVEMENTS
If the Leased Premises are not ready for occupancy by Tenant on the
lease commencement date, because Tenant's leasehold improvements are not
substantially complete or for any other reason, the obligations of Landlord
and Tenant shall nevertheless continue in full force and effect. In the
event the Lease Premises are not ready for occupancy for reasons other than
any delay in the installation of Tenant's leasehold improvements due to any
changes or additions ordered by Tenant, then the rent hereinabove provided
shall xxxxx and not commence until the date the leasehold improvements to
the Lease Premises are substantially complete; but such abatement of rent
shall constitute full settlement of all claims that Tenant might otherwise
have against Landlord by reason of the Leased Premises not being ready for
occupancy by Tenant on the lease commencement date. If the Leased Premises
are not ready for occupancy by Tenant on the lease commencement date, the
term of this Lease shall be extended by the period of time which elapses
between the lease commencement date as stated in article 4, and the date
the Leased Premises are ready for occupancy by Tenant, and the parties
agree to execute an agreement between them confirming any such extension of
the lease term.
41. ENTIRE AGREEMENT
Tenant agrees that as a material consideration for execution of this
Lease there are no oral representations, understandings, stipulations or
premises pertaining to this agreement that are not incorporated in this
Lease, and it is also agreed that this Lease shall not be altered, waived,
amended or extended except by written agreement signed by both parties,
unless expressly proved otherwise in this Lease.
42. SEVERABILITY
If any provision of this Lease is illegal, invalid or unenforceable
under present or future laws during the term of this Lease, it is the
intention of both parties that the remainder of this Lease shall not be
affected, and that a clause be added to this Lease as similar to such
invalid or unenforceable clause as possible and be legal, valid and enforceable.
43. CAPTIONS
The captions of each paragraph of this Lease are added as a matter of
convenience only and shall not be considered in the construction or
interpretation of any part of this Lease.
44. BINDING EFFECT
The provisions of this Lease shall be binding upon and insure to the
benefit of Landlord and Tenant, respectively, and to their heirs, personal
representatives, successors and assigns, subject to the provisions of
Section 26 above.
45. SPECIAL CONDITIONS
1. Tenant accepts the space in "as is" condition.
2. Tenant will prepay the first three months rent upon execution of the
Lease Agreement.
3. Landlord will grant Tenant the use of two (2) reserved parking spaces
in the underground garage of the building at no charge for the term of
the lease.
IN WITNESS WHEREOF, this Lease is entered into by the parties hereto on the
date and year first set forth above.
TENANT:
By:_______________________________
Name:_____________________________
Title:____________________________
Date:_____________________________
Attest:___________________________
LANDLORD:
By:_______________________________
Name:_____________________________
Title:____________________________
Date:_____________________________
Attest:___________________________
BUILDING RULES AND REGULATIONS
------------------------------
1. Landlord will provide and maintain an alphabetical directory
board on the ground floor lobby of the Building and allot one (1) name
strip for Tenant's use.
2. Tenant will be granted one building access card per 500 square
feet of leased space. Additional cards will require a $10.00 deposit per
card, which will be refunded upon Tenant's surrender of the access card.
3. Monitored reserved parking is available by separate agreement at
a monthly charge to Tenant. Parking permits as a part of this lease
agreement shall be unassigned and will not be policed by management.
4. Tenant will refer all contractors, contractors' representatives
and installation technicians rendering any service to Tenant, to Landlord's
supervision, approval, and control before performance of any contractual
service. This provision shall apply to all work performed in the Building
including the installation of telephones, telegraph equipment, electrical
devices, and attachments, and all installations of any nature affecting
floors, walls, woodwork, trim, windows, ceiling, equipment or any other
physical portion of the Building.
5. Movement in or out of the Building of furniture or office
equipment or the dispatch or receipt by Tenant of any merchandise or
materials which require the use of elevators or stairways or the movement
through Building entrances or lobbies shall be restricted to hours
designated by Landlord. All such movement shall be under supervision of
Landlord and in the manner agreed between Tenant and Landlord by
prearrangement before performance. Such prearrangement, initialed by
Tenant, will include the determination by Landlord and subject to its sole
discretion and control, time, method, and routing of movement, limitations
imposed by safety or other concerns which may prohibit any article,
equipment or any other item from being brought into the building. Tenant
shall assume all risk as to damage to articles moved and injury to persons
or property, and personnel if damaged or injured as a result of acts in
connection with such service performed for or by Tenant. Management will
inspect the condition of pathways prior to Tenant's move, and any damages
resulting from such moves will be deducted from Tenant's security deposit.
6. Unless otherwise expressly agreed in writing by Landlord, (i) no
signs will be allowed in any form on the exterior of the Building or the
interior or exterior of windows, (ii) no signs except in uniform location
and style fixed by Landlord will be permitted in the public corridors or on
corridor doors or entrances to Tenant's space, and (iii) the construction
and/or installation of all authorized signs will be contracted for by
Landlord for Tenant at the rate fixed by Landlord from time to time and
Tenant will be billed and pay for such service promptly on receipt thereof.
7. No portion of Tenant's Premises or any other part of the Building
shall at any time be used or occupied as sleeping or lodging quarters.
8. Tenant shall not place, install or operate on the Premises or in
any part of the Building, any engine, stove, or machinery, or conduct
mechanical operations or xxxx thereon or therein, or place or use in or
about the Premises any explosives, gasoline, kerosene, oil, acids,
caustics, or any other inflammable, explosive, or hazardous material
without written consent of Landlord.
9. Landlord shall not be responsible for lost or stolen personal
property, equipment, money or jewelry from Tenant's area or public rooms
regardless of whether such loss occurs when such area is locked against
entry or not.
10. Landlord will not permit entrance to Tenant's offices by use of
pass keys controlled by Landlord to any person at any time without the
prior written permission of Tenant except only employees, contractors, or
service personnel directly supervised by Landlord.
11. None of the entries, passages, doors, elevators doors, hallways,
or stairways shall be blocked or obstructed, nor shall any rubbish, litter,
trash, or material of any nature be placed, emptied or thrown into these
areas, nor shall such areas be used at any time except for ingress and
egress by Tenant, Tenant's agents, employees, or invitees.
12. Tenant shall not do, or permit anything to be done in or about
the Building, or bring or keep anything therein that will in any way
increase the rate of fire or other insurance on the Building, or on
property kept therein, or obstruct or interfere with the rights of, or
otherwise injure or annoy, other tenants, or do anything contrary to or in
conflict with valid laws, rules or regulations of any municipal or
governmental authority of fire, safety or building authority or regulation.
13. Should Tenant require telegraphic, telephonic, annunciator, data
processing equipment prior approval by Landlord will be required.
Contractors performing installation shall submit plans and receive
Landlord's approval on method of installation and will be subject to
Landlord's supervision on location and means of making cuts or wiring procedure.
14. Landlord specifically reserves the right to refuse admittance to
the Building from 6:30 PM to 7:00 AM daily, or on Sundays or on legal
holidays, to any person who, cannot furnish satisfactory identification, or
to any person who for any other reason in the Landlord's judgment, should
be denied access to the Demised Premises. Landlord, for the protection of
the tenants and their effects, may prescribe hours and intervals during the
night, on Sundays and holidays, when all persons entering and departing the
Building shall be required to enter their names, the office to which they
are going or from which they are leaving, and time of entrance or departure
in a register provided for that purpose by Landlord.
15. Landlord servers the right to rescind any of these rules and make
such other and further rules and regulations as in Landlord's judgment
shall from time to time be needed for the operations thereof, the
preservation of good order therein, and the protection and comfort of its
tenants, their agents, employees and invitees, which rules when made
and notice thereof given to a Tenant shall be binding upon Tenant in the
manner as if originally prescribed.
16. All lettering and signage within or without the Premises shall be
subject to the prior written approval of Landlord.
17. Tenant is responsible for excessive leakage from employee
automobiles. Tenant will be liable for costs associated with clean-up due
to excessive auto leakage.
18. No birds or animals shall be brought into or kept in or about the
building.
Landlord desires to maintain the highest standards of environmental
comfort and convenience for Tenant. It will be appreciated if any
undesirable conditions or lack of courtesy or attention are reported
directly to the management.
SECURITY DEPOSIT
Amount $ 3031.50
----------
The security deposit shall be payable on the date of Tenant's
execution of this Lease and shall be held by Landlord without liability for
interests and as security for the performance by Tenant of Tenant's
obligations under this Lease. It is expressly understood that the security
deposit shall not be considered an advance payment of rental or a measure
of Landlord's damages in case of default by Tenant or upon termination of
this Lease. Landlord may commingle the security deposit with Landlord's
other funds. Landlord may, from time to time, without prejudice to any
other remedy, use the security deposit to the extent necessary to make good
any arrearages of rent or to satisfy any other obligation of Tenant
hereunder. Following any such application of the security deposit, Tenant
shall pay to Landlord on demand the amount so applied in order to restore
the security deposit to its original amount. If Tenant is not in default
at the termination of this Lease, the balance of the security deposit
remaining after any such application shall be returned by Landlord to
Tenant. If Landlord transfers its interest in the Lease Premises during
the term of this Lease, Landlord may assign the security deposit to the
transferee and thereafter shall have no further liability for the return of
such security deposit.
FIRST AMENDMENT TO LEASE
This First Amendment to the Lease Agreement (the "First Amendment") is
entered into between Montfort Park Office Building (Landlord or Lessor) and
Netvoice Technologies, LLC (Lessee or Tenant) for and in consideration of
Ten Dollars ($10.00) and other good and valuable consideration, receipt of
which is hereby acknowledged.
Witnesesseth:
Lessor and Lessee hereby confirm and ratify, except as modified below, all
the terms, conditions, and covenants in that certain written Lease
Agreement dated March 10, 1998 between Lessor and Lessee except as modified
below:
1. Lessor and Lessee agree that Lessee will relocate from Suite 101
containing approximately 2021 rental square feet to Suite 250,
containing approximately 5640 rental square feet. Lessee's new
square footage is 5640 rental square feet.
2. The effective date will be March 15, 1999.
3. The rental rate will increase effective March 15, 1999 from
$3,031.50 per month to $8,695.00 per month. The base rental for
Suite 101 and increase for Xxxxx 000 for March 1, 1999 March
31, 1999 will be due upon execution of the Lease Amendment.
Thereafter, all rents are due on the first day of each month per
the Lease Agreement.
4. Lessee accepts the premises in "as is" condition except that
Lessor, at Lessors expense, will install a double wooden entry
door with sidelight.
5. Except as specifically amended and modified herein, the Lease
Agreement is hereby ratified and affirmed and remains in full
force and effect.
6. Lessor agrees to grant Lessee two (2) additional garage car parks
at no cost for the term of the lease.
Executed this ________________ Day of March, 1999
Lessor: Montfort Park Office Lessee: Netvoice Technologies, LLC
Building
By: ____________________________ By: ____________________________
Print: _________________________ Print: _________________________
Title: _________________________ Title: _________________________
