Exhibit 10.8
COMMERCIAL LEASE AGREEMENT
THIS LEASE AGREEMENT hereafter referred to as "Lease" is made and entered
into between DSW Property Management hereafter referred to as "Lessor" and DATA
RETURN CORPORATION hereafter referred to as "Lessee".
1. LEASED PREMISES: In consideration of the rents, terms, provisions and
covenants of this Lease Agreement, Lessor hereby leases, lets and demises to
Lessee the following described premises (referred to as "Leased Premises") and
containing approximately 2,713+/- square feet situated at 000 Xxxxxxx Xxxxx,
Xxxxx 000, Xxxxxxxxx, Xxxxx 00000 further described in exhibit A attached
hereto.
2. TERM: Subject to and upon the conditions set forth below, the term of
this Lease shall commence on August 1, 1997 and shall terminate the last day of
July 31, 1999.
3. RENT: Shall be as follows (subject to possible escalations in
property taxes, insurance, utilities and or any adjustments to rent spelled out
under SPECIAL PROVISIONS.)
Total monthly rent payment: $1,400.00
which amount shall be payable to Lessor at the address shown below on the first
day of the month. One monthly installment of rent shall be due and payable on
the date of execution of this Lease by Lessee for the first month's rent and a
like monthly installment shall be due and payable on or before the first day of
each calendar month succeeding the "commencement date" during the lease term
provided, that if the "commencement date" should be a date other than the first
day of a calendar month, the monthly rental set forth above shall be prorated to
the end of that calendar month, and all succeeding installments of rent shall be
payable on or before the first day of each succeeding calendar month during the
lease term.
a. On the date of execution of this Lease by Lessee, a security
deposit shall be paid by Lessee in the amount of $1,400.00 and is held for the
performance by Lessee of Lessee's covenants and obligations under this Lease, it
being expressly understood that the deposit shall not be considered an advance
payment of rental or a measure of Lessor's damage in case of default by Lessee.
Upon the occurrence of any event of default by Lessee or breach by Lessee of
Lessee's covenants under this Lease, Lessor may, from time to time without
prejudice to any other remedy, use the security deposit to the extent necessary
to make good any arrears of rent and/or any damage, injury, expense or liability
caused to Lessor by the event of default or breach of covenant and Lessee shall
immediately restore said security deposit to the full amount required under this
Lease.
b. If any increase in the fire and extended coverage insurance
premiums paid by Lessor for the building in which Lessee occupies space is
caused by Lessee's use and occupancy of the Leased Premises, or if Lessee
vacates the Leased Premises and causes an increase in such premiums, then Lessee
shall pay as additional rental the amount of such increase to Lessor.
1
c. Other remedies for non payment of rent notwithstanding, if the
monthly rental payment is not received by Lessor (U.S. Postmark date accepted as
date received) on or before the tenth day of the month for which rent is due, or
if any other payment due Lessor by Lessee is not received by Lessor on or before
the tenth day of the month an additional TEN PERCENT (10%) each month of such
past due amount shall become due and payable in addition to such amounts owed
under this Lease. Partial payments of rent and or monies due from Lessee and
accepted by Lessor do not constitute payment in full. All checks for rents and
or monies due under the terms of this Lease received by Lessor from Lessee and
returned for insufficient funds will incur an additional twenty five dollar
($25.00) charge to be paid by Lessee to Lessor along with the original amount
plus any applicable late fees in a cashable legal tender form and delivered in
person by Lessee and or its agent at Lessor's official address.
4. SIGNS: No signs, pictures, notices or advertisements may be displayed
on any part of the exterior of the building on the Leased Premises without the
prior approval of Lessor as to location, size, color, material and manner of
attachment. Lessee shall maintain the Lessor-approved sign in good condition.
5. USAGE: Lessee warrants and represents to Lessor that the Leased
Premises shall be used and occupied only for the purposes of office
space/warehouse usage. Lessee shall occupy the Leased Premises, conduct its
business, and control its agents, employees, invitees and visitors in such a way
as is lawful, reputable, safe and will not create any nuisance or otherwise
interfere with, annoy or disturb any other tenant in its normal business
operations or Lessor in its management of the building. Lessee shall not
commit, or suffer to be committed, any waste on the Leased Premises.
6. INSURANCE: Lessee shall not permit the Leased Premises to be used in
any way which would, in the opinion of Lessor, be unusually hazardous because of
fire or would in any way increase or render void the fire insurance on leasehold
improvements or contents belonging to any tenant in the building. If at any
time during the term of this Lease the State Board of Insurance or other
insurance authority disallows any of Lessor's sprinkler credits or imposes an
additional penalty or surcharge in Lessor's insurance premiums because of
Lessee's original or subsequent placement or use of storage rack or bins, method
of storage or nature of Lessee's inventory or any other act of Lessee, Lessee
agrees to pay as additional rental the increase in Lessor's insurance premiums.
If an increase in the fire and extended coverage premiums paid by Lessor for the
building in which Lessee occupies space is caused by Lessee's use or occupancy
of the Leased Premises, then Lessee shall pay as additional rental the amount of
such increase to Lessor.
7. UTILITY SERVICE: Lessor shall provide the normal utility service
connections into the Leased Premises. Lessor also reserves the right to change
utility services without liability for interruption of service. Lessee shall
pay the cost of all utility services, including, but not limited to, initial
connection charges, all charges for gas, water and electricity used on the
Premises, or tubes, Lessee shall pay all costs caused by Lessee introducing
excessive pollutants into the sanitary sewer system, including permits, fees and
charges levied by any governmental subdivision for any pollutants or solids
other than ordinary human waste. Lessee shall be responsible for the
installation and maintenance of any dilution tanks, holding tanks, setting
tanks, sewer sampling devices, sand traps, grease traps or similar devices as
may be required by the governmental subdivision for Lessee's use of the sanitary
sewer system. If the Leased Premises are in a multi-occupancy building, Lessee
2
shall pay all surcharges levied due to Lessee's use of sanitary sewer or waste
removal services insofar as such surcharges effect Lessor or other tenants in
the building. Lessor shall not be required to pay for any services, supplies or
upkeep in connection with the Leased Premises. However, in a multi-occupancy
building Lessor may provide water and or other services to the Leased Premises
in which case Lessee agrees to pay to Lessor the stipulated amount or amounts
under this Lease for such services.
8. TAXES, INSURANCE, AND UTILITY INCREASES: If during the first year or
any subsequent year of this Lease, there should be increases in the cost of any
of the following: the property taxes, building insurance, commercial water,
sewer, and garbage fees, then such increases may at Lessors discretion, be
passed on to the Lessee by raising the rent upon one full months notice thereof
from Lessor to Lessee. The increase in the monthly rental payment and fees
shall increase by taking amount of the monthly increases times the percent of
the Lessee's leased space square footage to the total buildings square footage.
9. REPAIRS AND MAINTENANCE: (a) Unless otherwise expressly provided
herein, Lessor shall not be required to make any improvements, replacements or
repairs of any kind or character to the Leased Premises during the term of this
Lease except such repairs as are set forth in this subparagraph. Lessor shall
maintain only the roof, foundation, underground plumbing, outside and
underground electrical, outside maintenance, and the structural soundness of the
exterior walls (excluding all windows, window glass, plate glass and all doors)
of the building in good repair and condition except for reasonable wear and
tear. Lessee shall repair and pay for any damage caused by Lessee's negligence
or default. Lessee shall give written notice to Lessor of the need for Lessor
obligated repairs, which repairs shall then be reasonably made by Lessor.
Lessor shall not be liable to Lessee, except as expressly provided in this
Lease, for any damage or inconvenience, and Lessee shall not be entitled to any
abatement or reduction of rent by reason of any repairs, alterations or
additions made by Lessor under this Lease.
a. Lessee shall, at its own risk and expense, maintain all other
parts of the building and other improvements on the Leased Premises in good
repair and condition (including all necessary replacements), including, but not
limited to the electrical fixtures, light bulb replacement, plumbing fixtures,
pest control, air conditioning equipment, etc. Lessee shall take good care of
all the property and its fixtures. Should Lessee neglect to keep and maintain
the Leased Premises, then Lessor shall have the right, but not the obligation,
to have the work done and any reasonable costs therefore shall be charged to
Lessee as additional rental and shall become payable by Lessee with the payment
of the rental next due thereunder.
b. All requests for repairs or maintenance that are the
responsibility of Lessor pursuant to any provision of this Lease must be made in
writing to Lessor at the address set forth below.
10. COMPLIANCE WITH LAWS, RULES AND REGULATIONS: Lessee shall comply with
all laws, ordinances, orders, rules and regulations of state, federal, municipal
or other agencies or bodies having jurisdiction relating to the use, condition
and occupancy of the Leased Premises. Lessee further agrees to comply with the
following:
3
a. Nothing to be stored on the outside of the building.
b. No inoperative or unlicensed vehicles are to be left in the
parking area.
c. User shall keep the immediate area outside its Leased Premises
clean of trash.
d. Lessee shall not disturb adjoining tenants with offensive
materials, odors, or loud noises.
e. Lessee shall use the trash dumpsites for on-site created garbage
use only and shall break down all empty cartons in order to use
the dumpsters effectively.
f. Lessee shall be required to furnish its own garbage dumpster if
Lessee's use is determined by Lessor to be excessive.
g. Lessee shall not at any time occupy any part of the Leased
Premises as sleeping or lodging quarters.
h. No pets or animals are allowed in Leased Premises.
11. ALTERATIONS AND IMPROVEMENTS: Lessee shall not make or allow to be
made any alterations or physical additions in or to the Leased Premises without
first obtaining the written consent of Lessor. Any alterations, physical
additions or improvements to the Leased Premises made by Lessee shall at once
become the property of Lessor and shall be surrendered to Lessor upon the
termination of this Lease. This clause shall not apply to moveable Trade
Fixtures owned by Lessee that may be removed by Lessee at the end of the term of
this Lease if Lessee is not then in default and if Trade Fixtures are not then
subject to any other rights, liens and interests of Lessor.
12. CONDEMNATION: If the Leased Premises shall be taken or condemned for
any public purpose or for any reason whatsoever to such an extent to render it
untenantable Lessor or Lessee shall have the option to terminate this Lease
effective as of the date of taking or condemnation and any prepaid future rents
paid to Lessor by Lessee shall be refunded. Should a portion or all of the
Property of which the Leased Premises is a part be taken or condemned for any
public purpose or for any reason whatsoever Lessor may at his sole option
terminate this Lease effective as of the date of taking or condemnation if such
option is exercised by Lessor, Lessor shall be obligated to refund any prepaid
future rents paid to Lessor by Lessee. Any awards and or proceeds from any
taking or condemnation shall be for Lessors benefit and Lessee waives all claims
thereto.
13. FIRE AND CASUALTY: a. If the Leased Premises should be totally
destroyed by fire, tornado or other casualty, or if the Leased Premises should
be so damaged so that rebuilding or repairs cannot reasonably be completed
within one hundred eighty (180) working days after the date of written
notification by Lessee to Lessor of the destruction, this Lease shall terminate
and the rent
4
shall be abated for the unexpired portion of the Lease, effective as of the date
of the written notification.
a. If the Leased Premises should be partially damaged by fire,
tornado or other casualty, and rebuilding or repairs can reasonably be completed
within ninety (90) working days from the date of written notification by Lessee
to Lessor of the destruction, this Lease shall not terminate, but Lessor may at
its sole risk and expense proceed with reasonable diligence to rebuild or repair
the building or other improvements to substantially the condition in which they
existed prior to the damage. If the Leased Premises are to be rebuilt or
repaired and are untenable in whole or in part following the damage, and the
damage or destruction was not caused or contributed to by act or negligence of
Lessee, its agents, employees, invitees or those for whom Lessee is responsible,
the rent payable under this Lease during the period for which the Leased
Premises are untenable shall be adjusted to such an extent as may be fair and
reasonable under the circumstances. In the event that Lessor fails to complete
the necessary repairs or rebuilding within ninety (90) working days from the
date of written notification by Lessee to Lessor of the destruction, Lessee may
at its option terminate this Lease by delivering written notice of termination
to Lessor, whereupon all rights and obligations under the Lease shall cease to
exist.
14. CASUALTY INSURANCE: Lessor shall at all times during the term of this
Lease maintain a policy or policies of insurance with the premiums paid in
advance, issued by and binding upon some solvent insurance company, insuring the
building against loss or damage by fire, explosion or other hazards and
contingencies; provided, that Lessor shall not be obligated in any way or manner
to insure any personal property (including but not limited to, any furniture,
machinery, goods or supplies) of Lessee or which Lessee may have upon or within
the Leased Premises or any fixtures installed by or paid for by Lessee upon or
within the Leased Premises or any additional improvements which Lessee may
construct on the Leased Premises. Lessor shall in no way be obligated or liable
to replace, repair or reimburse Lessee for any damages to Lessee's personal
property (including but not limited to any Trade Fixtures, inventory, goods or
supplies) and or any interruption of Lessee's business no matter whom or what
caused such damages. It is highly recommended that Lessee obtain sufficient
insurance to cover its personal property. Any insurance which may be carried by
Lessor or Lessee insuring against damage to the building or buildings and or any
contents therein shall be for the sole benefit of the party carrying such
insurance and under its sole control.
15. HOLD HARMLESS: Lessor, its employees and agents, shall not be liable
to Lessee and or Lessee's employees, agents, invitees, licensees or visitors, or
to any other person, for any injury or death to person or damage to property on
or about the Leased Premises caused by the negligence or misconduct of Lessee,
its agents, servants or employees, or of any other person entering upon or about
the Leased Premises under express or implied invitation by Lessee, or caused by
the building and or buildings and improvements located there on of which the
Leased Premises is a part, becoming out or repair, or caused by leakage of gas,
oil, water or steam or by electricity emanating from the Leased Premises.
Lessee agrees to indemnify and hold harmless Lessor it's employees and agents
from any loss, attorney's fees, expenses or claims arising out of any such
damage or injury. It is highly recommended that Lessee add the Lessor as an
additional insured on their liability insurance policy.
5
16. QUIET ENJOYMENT: Lessor warrants that he has full right to execute
and to perform this Lease and to grant the estate demised and that Lessee, upon
payment of the required rents and performing the terms, conditions, covenants
and agreements contained in this Lease, shall peaceably and quietly have, hold
and enjoy the Leased Premises during the full term of this Lease as well as any
extension or renewal thereof.
17. LESSOR'S RIGHT OF ENTRY: Lessor shall have the right, at all
reasonable hours, to enter the Leased Premise for the following reasons:
inspection, cleaning or making repairs, making alterations or additions as
Lessor may deem necessary or desirable, determining Lessee's use of the Leased
Premises, or determining if an act of default under this Lease has occurred.
Lessor shall have the right to (during the last 30 days of this lease and during
business hours) to show the Leased Premises to prospective tenant.
18. ASSIGNMENT OR SUBLEASE: Lessee shall have the right to transfer and
assign, in whole or in part, its rights and obligations in the building and
property that are the subject of this Lease with the following exceptions
(unacceptable businesses are automotive repair, restaurant, paint and body shop,
private club, high personnel usage business or business in Lessor's sole opinion
not compatible with the business complex). Lessee shall not assign this Lease
or sublet all or any part of the Leased Premises without the prior written
consent of Lessor which consent shall not be unreasonably withheld. Lessor
shall have the option, upon receipt from Lessee of written request for Lessor's
consent to subletting or assignment, to cancel this Lease as of the date the
requested subletting or assignment is to be effective. The option shall be
exercised, if at all, within fifteen (15) days following Lessor's receipt of
written notice by delivery to Lessee of written notice of Lessor's intention to
exercise the option. In the event of any assignment or subletting, Lessee shall
nevertheless at all times, remain fully responsible and liable for the payment
of the rent and for compliance with all of its other obligations under the
terms, provisions and covenants of this Lease. Upon the occurrence of an "event
of default" as defined below, if all or any part of the Leased Premises are then
assigned or sublet, Lessor, in addition to any other remedies provided by this
Lease or provided by law, may, at its option, collect directly from the assignee
or subtenant all rents becoming due to Lessee by reason of the assignment or
sublease, and Lessor shall have a security interest in all properties on the
Leased Premises to secure payment of such sums. Any collection directly by
Lessor from the assignee or subtenant shall not be construed to constitute a
notation or a release of Lessee from the further performance of obligations
under this Lease.
19. LANDLORD'S LIEN: As security for Lessee's payment of rent, damages and all
other payments required to be made by this Lease, Lessee hereby grants to Lessor
a lien upon all property of Lessee now or subsequently located upon the Leased
Premises. If Lessee abandons or vacates any substantial portion of the Leased
Premises or in default in the payment of any rentals, damages or other payments
required to be made by this Lease or is in default of any other provision of
this Lease, Lessor may enter upon the Leased Premises without liability for
trespass, by picking or changing locks if necessary, and take possession of all
or any part of the personal property, and may sell all or any part of the
personal property at a public or private sale, in one or successive sales with
or without notice, to the highest bidder for cash, and on behalf of Lessee, sell
and convey all or part of their personal property to the highest bidder,
delivering to the highest bidder all of Lessee's title and interest in the
personal property sold him. The proceeds of the sale of the personal property
shall be applied by Lessor toward the reasonable costs and expenses of the sale,
including attorney's fees,
6
and then toward the payment of all sums then due by Lessee to Lessor under the
terms of this Lease; any excess remaining shall be paid to Lessee or any other
person entitled thereto by law.
20. UNIFORM COMMERCIAL CODE: To the extent, if any, this Lease grants
Lessor any lien or lien rights greater than provided by the laws of this State
(the State in which the Leased Premises arc located) pertaining to "Landlord's
Liens", this Lease is intended as and constitutes a security agreement within
the meaning of the Uniform Commercial Code of this State and, Lessor, in
addition to the rights prescribed in this Lease, shall have all of the rights,
titles, liens and interests in and to Lessee's property now or hereafter located
upon the Leased Premises which are granted a secured party, as that term is
defined, under this State's Uniform Commercial Code to secure the payment to
Lessor of the various amounts provided in this Lease. Lessee will on request
execute and deliver to Lessor a financing statement for the purpose of
perfecting Lessor's security interest under this Lease or Lessor may file this
Lease or a copy thereof as a financing statement.
21. DEFAULT: The following shall be deemed to be events of default by
Lessee under this Lease:
a. Failure to pay when due any designated installment of rent or any
other payment required pursuant to this lease and such failure
shall continue for a period of fifteen (15) days.
b. Failure to correct any other breach of a condition or requirement
of this lease, other than the payment of Rent or any other
payment required pursuant to this Lease, within ten (10) days
after written notice to Lessee.
c. Adjudication as a bankruptcy, insolvency, assignment for the
benefit of creditors, proceedings under the National Bankruptcy
Act or the appointment of a receiver of trustee of all of or
substantially all of Lessee's assets.
d. The substantial abandonment of the Leased Premises by Lessee or
failure of Lessee to operate its business from the Leased
Premises and the continuance of such failure for thirty (30)
days.
22. LESSOR'S REMEDIES: Upon occurrence of an event of default, the Lessor
may pursue any one or more of the following remedies:
a. REMEDIES, TENANT REMAINING IN POSSESSION: Upon the occurrence of
any event of default enumerated in paragraph 21 hereof, Lessor
shall have the option of (i) terminating the Lease by written
notice thereof to Lessee, (ii) continuing this lease in full
force and effect, or (iii) curing such default on behalf of
Lessee
(1) In the event Lessor shall terminate this Lease, the
following shall occur. Upon written notice to Lessee, this Lease shall be ended
to Lessee and all persons holding under Lessee, and all of Lessee's rights shall
be forfeited and lapsed, as fully as if this Lease had expired by lapse of time
and there shall immediately become due and payable the amount by which
7
(i) the total of the rent and the benefits which would have accrued to Lessor
under this Lease for the remainder of the term if the terms and provisions of
this Lease had been fully complied with by Lessee exceeds (ii) the then-fair-
market rental value of the premises for the balance of the term (it being the
intention of both parties hereto that Lessor shall receive the benefit of its
bargain); and the Lessee shall immediately surrender the Leased Premises to
Lessor. If Lessee shall fail to do so Lessor may without notice and prejudice to
any other remedy available enter and take possession of the Leased Premises and
remove Lessee and or anyone occupying the Leased Premises and its effects
without being liable to prosecution or any claim for damages, in addition to the
sum immediately due from Lessee under the foregoing provision, there shall be
recoverable from Lessee:
(a) the cost of restoring said Leased Premises to good
condition, normal wear and tear excepted;
(b) all accrued sums, plus interest at the rate of ten percent
(10%) per annum and late charges, if in arrears, under the
terms of this Lease up to the date of termination:
(c) Lessor's cost of covering possession of the Leased Premises;
and
(d) rent and sums accruing subsequent to the date of termination
pursuant to the holdover provisions of paragraph 8.
(2) In the event that Lessor shall elect to continue this Lease in
full force and effect and Lessee shall continue to be liable for all rents,
Lessor shall nevertheless have all the rights of re-entry upon said Leased
Premises without becoming liable for damages, or guilty of a trespass and Lessor
after re-entry may relet the Leased Premises or any part thereof, for a period
of time equal to or lesser of greater than the remainder of the term on whatever
terms and conditions Lessor, at Lessor's sole discretion, deems advisable.
Against the rents and sums due from Lessee to Lessor during the remainder of the
term, credit shall be given Lessee in the net amount of rent received from the
new tenant after deduction by Lessor for: (i) the cost incurred by Lessor in
reletting the Leased Premises (including, without limitation, remodeling costs,
brokerage fees and the like; (ii) the accrued sums, plus interest and late
charges if in arrears, under the terms of this lease; (iii) Lessor's cost of
recovering possession of the Leased Premises; and (iv) the cost of storing any
of Lessee's property left on the Leased Premises after re-entry.
Notwithstanding any provision in this paragraph 23 to the contrary, upon
the default of any substitute tenant or upon the expiration of the Lease term of
such substitute tenant before the expiration of the term hereof, Lessor may, at
Lessor's election, either relet to still another substitute tenant, or terminate
this Lease and exercise its rights under this paragraph 22.
(3) In the event Lessor shall elect to cure the default of Lessee at
Lessor's expense, the cost of such cure plus interest thereon at the rate of ten
percent (10%) per annum shall become additional rent and shall become due
immediately.
8
b. REMEDIES, ABANDONMENT: Upon abandonment, Lessor shall have the
option of either: (1) terminating this Lease by written notice thereof to
Lessee, or (2) continuing this Lease in full force and effect. 22a(1) shall be
applicable except subparagraph (c) (costs of recovering possession) and
subparagraph (d) (holdover rent). In the event Lessor shall continue this Lease
in full force and effect, Lessor may from time to time xxx Lessee to recover all
amounts accrued to the date of suit under the terms and provisions of the Lease
(plus legal costs) without such suit constituting termination of this Lease or
relet the Leased Premises under all the terms and provisions hereof except costs
of recovering the Leased Premises.
23. WAIVER OF DEFAULT OR REMEDY: Failure of Lessor to declare an event of
default immediately upon its occurrence, or delay in taking any action in
connection with an event of default, shall not constitute a waiver of the
default, but Lessor shall have the right to declare the default at any time and
take such action as is lawful or authorized under this Lease. Pursuit of any
one or more of the remedies set forth in paragraph 22 above shall not preclude
pursuits of any one or more of the other remedies provided elsewhere in this
Lease or provided by law, nor shall pursuit of any remedy provided constitute a
forfeiture or waiver of any rent or damages accruing to Lessor by reason of the
violation of any of the terms, provisions or covenants of this Lease. Failure
by Lessor to enforce one or more of the remedies provided upon an event of
default shall not be deemed or construed to constitute a waiver of the default
or of any other violation or breach of any of the terms, provisions and
covenants contained in this Lease.
24. SURRENDER AT TERMINATION: At the expiration or termination of this
Lease, Lessee shall peaceably vacate the Leased Premises and deliver all
alterations and additions thereto in good repair and condition, reasonable wear
and tear expected, restoring the Leased Premises wherever necessary and leaving
it clean and neat. Any of Lessee's trade fixture's and or personal property not
removed at the expiration or other termination of this Lease (or within seventy
two (72) hours after a termination by reason of Lessee's default may be
appropriated, sold, destroyed or otherwise disposed of by Lessor without notice
or obligation to compensate Lessee or to account for such disposition, Lessee
shall pay to Lessor all costs incurred by Lessor in connection therewith.
Lessee's obligations under this section shall survive expiration or other
termination of this Lease.
25. ACTS OF GOD: Lessor shall not be required to perform any covenant or
obligation in this Lease, or be liable in damages to Lessee, so long as the
performance or non-performance of the covenant or obligation is delayed, caused
by or prevented by an act of God or force majeure.
26. ATTORNEY'S FEES: In the event Lessee defaults in the performance of
any of the terms, covenants, agreements or conditions contained in this Lease
and Lessor places in the hands of an attorney the enforcement of all or any part
of this Lease, the collection of any rent due or to become due or recovery of
the possession of the Leased Premises, Lessee agrees to pay Lessor reasonable
attorney's fees for the services of the attorney, whether suit is actually filed
or not. In no event shall the attorney's fees be less than fifteen percent
(15%) of the outstanding balance owed by Lessee to Lessor.
27. HOLDING OVER: a. Unless otherwise notified by Lessor, if Lessee
shall continue to occupy the Leased Premises following the expiration of this
Lease Agreement such occupancy shall be deemed a month-to-month tenancy. During
such tenancy all terms, provisions and
9
conditions of the Lease Agreement shall apply to the month-to-month tenancy
except those terms, provisions and conditions pertaining to the Lease Term. Such
month-to-month tenancy may be terminated by either Lessor or Lessee with at
least one full months previous written notice to the other party.
a. If Lessee continues to occupy the Leased Premises after the
expiration or earlier termination of this Lease Agreement against Lessor's will
or if Lessee fails to renew this Lease Agreement at Lessor's request prior to
the expiration of this Lease Agreement or under a month-to-month tenancy one
full month after notice of such lease renewal request from Lessor to Lessee,
Lessee agrees to pay Lessor as Liquidated damages for each month of continued
occupancy an amount equal to one and a half (1.5) times the rent being paid for
the month the Lease Agreement expires or is terminated. No receipt of money
after the expiration or termination of this Lease Agreement shall reinstate or
extend this Lease or affect any prior notice given by Lessor to Lessee.
28. RIGHTS OR MORTGAGEE: Lessee accepts this Lease subject and
subordinate to any recorded mortgage, deed of trust or other lien presently
existing upon the Leased Premises. Lessor is hereby irrevocably vested with full
power and authority to subordinate Lessee's interest under this Lease to any
mortgage, deed of trust or other lien hereafter placed on the Leased Premises,
and Lessee agrees upon demand to execute additional instruments subordinating
this Lease as Lessor may require. If the interests of Lessor under this Lease
shall be transferred by reason of foreclosure or other proceedings for
enforcement of any mortgage on the Leased Premises, Lessee shall be bound to the
transferee (sometimes called the "Purchaser") under the terms covenants and
conditions of this Lease for the balance of the term remaining, and any
extensions or renewals, with the same force and effect as if the Purchaser were
Lessor under this Lease, and Lessee agrees to attorn to the Purchaser, including
the mortgagee under any such mortgage if it be the Purchasers as its Lessor, the
attornment to be effective and self-operative without the execution of any
further instruments upon the Purchaser succeeding to the interest of Lessor
under this Lease. The respective rights and obligations of Lessee and the
Purchaser upon the attornment, to the extent of the then remaining balance of
the term of this Lease, and any extensions and renewals, shall be and are the
same as those set forth in this Lease.
29. LIABILITY OF LESSOR - SALE BY LESSOR: Lessee shall look solely to
Lessor's interest in the building and land upon which the Leased Premises is
situated, for recovery of any judgment against Lessor. A sale, conveyance, or
assignment of Lessor's interest in the Leased Premises shall operate to release
Lessor from all the covenants, terms, and conditions of this Lease, expressed of
implied, and Lessee agrees to look solely to the successor in interest of the
Lessor for the performance of such obligations.
30. ESTOPPEL CERTIFICATES: Lessee agrees to furnish promptly, from time
to time, upon request of Lessor or Lessor's mortgagee, a statement certifying
that Lessee is in possession of the Leased Premises; the Leased Premises are
acceptable; the Lease is in full force and effect; the Lease is unmodified;
Lessee claims no present charge, lien, or claim of offset against rent; the rent
is paid for the current month, but is not paid and will not be paid for more
than one month in advance; there is no existing default by reason of some act or
omission by Lessor; and such other matters as may be reasonable required by
Lessor or Lessor's mortgagee.
10
31. SUCCESSORS: This Lease shall be binding upon and inure to the benefit
of Lessor and Lessee and their respective heirs, personal representatives,
successors and assigns. It is hereby covenanted and agreed that should Lessor's
interest in the Leased Premises cease to exist for any reason during the term of
the Lease then notwithstanding the happening of such event this Lease
nevertheless shall remain unimpaired and in full force and effect and Lessee
hereunder agrees to attorn to the then owner of the Leased Premises.
32. RENT TAX: If applicable in the jurisdiction where the Leased Premises
are situated, Lessee shall pay and be liable for all rental, sales and use taxes
or other similar taxes, if any, levied or imposed by any city, state, county or
other governmental body having authority, such payments to be in addition to all
other payments required to be paid to Lessor by Lessee under the terms of this
Lease. Any such payment shall be paid concurrently with the payment of the rent
upon which the tax is based as set forth above.
33. NOTICE: a. All rent and other payments required to be made by Lessee
shall be payable to Lessor at the address set forth below, or any other address
Lessor may specify from time to time by written notice delivered to Lessee.
a. All payments required to be made by Lessor to Lessee shall be
payable to Lessee at the address set forth below, or at any other
address within the United States as Lessee may specify from time
to time by written notice.
b. Any notice or document required or permitted to be delivered by
this Lease shall be deemed to be delivered (whether or not
actually received) when deposited in the United States Mail,
postage prepaid, certified or registered mail, return receipt
requested, addressed to the parties at the respective addresses
(Legal Address) set out at the end of the main body of this
Lease.
34. DEFINITIONS: These definitions apply to the terms defined as those
terms used throughout this Lease.
a. "Abandon" means the vacating of all or a substantial portion of
the Leased Premises by Lessee, whether or not Lessee is in
default of the rental payments due under this Lease.
b. An "act of God" or "force majeure" is defined for purpose of this
Lease as strikes, lockouts, sit-downs, material or labor
restrictions by any governmental authority, riots, floods,
washouts, explosions, earthquakes, fire, storms, acts of the
public enemy, wars, insurrections and any other cause not
reasonable within the control of Lessor and which by the exercise
of due diligence Lessor is unable, wholly or in part, to prevent
or overcome.
c. The "commencement date" shall be the date set forth in paragraph
2. The "commencement date" shall constitute the commencement of
this Lease Agreement for all purposes, whether or not Lessee has
actually taken possession.
11
d. "Real property tax" means all city, state and county taxes and
assessments including special district taxes or assessments.
e. The captions appearing in this Lease are inserted only as a
matter of convenience and in no way define, limit, construe or describe the
scope or intent of such paragraph.
35. ACCEPTANCE OF LEASED PREMISES: Lessee acknowledges that it has
inspected the Leased Premises and accepts the same and the improvements erected
thereon in their present condition as suitable for the purpose for which the
same are leased.
36. SEVERABILITY: Should any part or provision of this Lease or the
application thereof to any person or circumstance be invalid or unenforceable to
any extent, the remainder of this Lease and the application of such provisions
to other persons or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by law.
37. CORPORATE AUTHORITY: If Lessee executes this Lease as a corporation,
the person or persons executing this Lease on behalf of Lessee do hereby
personally represent and warrant that Lessee is a duly authorized and existing
corporation and the Lessee is qualified to do business in the state in which the
Leased Premises are located. That the corporation has full right and authority
to enter into this Lease, and that each person signing on behalf of the
corporation is authorized to do so. In the event any representation or warranty
is false, all persons who execute this Lease shall be liable, individually, as
Lessee.
38. ENTIRE AGREEMENT AND LIMITATION OF WARRANTIES: IT IS EXPRESSLY AGREED
BY LESSEE, AS A MATERIAL CONSIDERATION FOR THE EXECUTION OF THIS LEASE, THAT
THIS LEASE, WITH THE SPECIFIC REFERENCES TO WRITTEN EXTRINSIC DOCUMENTS, IS THE
ENTIRE AGREEMENT OF THE PARTIES, THAT THERE ARE, AND WERE, NO VERBAL
REPRESENTATIONS, WARRANTIES, UNDERSTANDINGS, STIPULATIONS, AGREEMENTS OR
PROMISES AND OR IMPLICATIONS BY WAY OF LESSORS ACTIONS OR LACK THEREOF
PERTAINING TO THIS LEASE OR THE EXPRESSLY MENTIONED WRITTEN EXTRINSIC DOCUMENTS
NOT INCORPORATED IN WRITING IN THIS LEASE. LESSOR AND LESSEE EXPRESSLY AGREE
THAT THERE ARE AND SHALL BE NO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OR
OF ANY OTHER KIND ARISING OUT OF THIS LEASE. IT IS LIKEWISE AGREED THAT THIS
LEASE MAY NOT BE ALTERED, WAIVED, AMENDED OR EXTENDED EXCEPT BY AN INSTRUMENT IN
WRITING SIGNED BY BOTH LESSOR AND LESSEE.
39. PLACE OF PERFORMANCE: Any legal suit arising from or relating to this
Lease shall be brought in Collin County to the state of Texas except eviction
proceedings which shall take place in the county where the Leased Premises lies.
12
Executed the 14h day of July, 1997.
LESSOR: LESSEE:
DSW Property Management Data Return
-------------------------------------------- -------------------------------
(Lessor Name) (Lessee Name)
a General Partnership a (Business Type ex: Corporation,
Partnership, Sole Proprietor)
by: /s/ Xxxxxx X. Xxxxxxx by: /s/ Sunny X. Xxxxxxxxxx
---------------------------------------- -----------------------------
Signature Signature
Xxxxxx X. Xxxxxxx, Owner/Managing Partner Sunny X.Xxxxxxxxxx, CEO
-------------------------------------------- ---------------------------------
(Print Name and Title) (Print Name and Title)
Ph# (000) 000-0000 Ph#'s (0)_______________
(000) 000-0000 (H)_______________
Xxxxxx Xxxxxxxxx (B)_______________
(Fax)_____________
LESSOR'S LESSEE'S
LEGAL ADDRESS: LEGAL ADDRESS:
0000 XXXXXXXXX XX- XXXXX 0X 801 STADIUM
---------------------------------
XXXXXX, XXXXX 00000 SUITE 117
---------------------------------
XXXXXXXXX, XX 00000
---------------------------------
00
XXXXXXX XX XXXXXXX XXXXX, XXXXXXXXX, XXXXX 00000
(All Square Footages Are Approximate)
EXHIBIT "A"
-----------
The Leased Premises can be legally described as a
portion (Suite 117) of that one story building known as 000
Xxxxxxx Xxxxx situated on Xxx 0, Xxxxx 0, Xxxxxxx Xxxx, an
addition to the City of Arlington, Tarrant County, Texas, as
recorded in Volume 388-164, Page 5 of the Plat Records of
Tarrant County, Texas.
[Graphic of Leased Premises]
14
ATTACHMENT "B"
1. Lessee may at their own expense, construct the wall and door denoted in
attachment "C". All construction work must be of quality materials and
workmanship, and must be completed according to local building codes. All
plans must be subject to Lessor's prior approval, and Lessor may at his own
discretion inspect the work at any time.
2. Area "B" denoted on Attachment "C" may be finished out by Lessee at their
own expense. All plans must be approved by Lessor in advance and must be of
quality workmanship and built according to local building codes.
3. Lessor agrees to warrant the air conditioning/heating (HVAC) system for a
period of 90 days commencing August 1, 1997 and ending October 29, 1997.
Lessee must change the filters regularly, at least every 3 months. Lessee
is responsible for any damage incurred to the HVAC system that results from
neglect, vandalism during the warranty period.
4. Should Lessee incorporate at any time in the future, during the period
covered by this Lease, and upon presentation of such incorporation
documentation to Lessor, this Lease shall be changed by attachment of an
addendum that refers to such incorporation. The addendum shall make
amendment to all areas of the Lease where the Lessee is mentioned, changing
the obligation of the Lessee to the incorporated entity
5. Lessee shall pay and be responsible for all flooring in the leased
premises.
ATTACHMENT "B"
15
