EXHIBIT 10.64
LEASE
THIS LEASE AGREEMENT ("Lease") is made this 21st day of November, 1996,
---- -------- --
between the "Landlord" and the "Tenant" hereafter set forth.
WITNESSETH:
1. DEFINITIONS
-----------
(a) "Landlord": Striper Partners IV, Ltd.
Address: 0000 X.X. Xxx. 000, Xxxxx
Xxxxx 000
Xxxxx, XX 00000
(b) "Tenant": Virtual Mortgage Network, Inc.
Address: 0000 XxxXxxxxx Xxxx.
Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
(c) "Premises": Xxxxx Xx. 000 consisting of approximately 848 square
--- ---
feet of net rentable area (which the parties agree are contained in the
Premises), as outlined in red on the attached Exhibit "A" expressly made a part
hereof. The Premises are located on the 1st floor of the structure, hereinafter
---
called the "Building," located at 0000 Xxx Xxxxx Xxxx., Xxxxx, XX 00000.
---------------------------------------
(d) Use of "Premises": General Office
--------------
(e) "Commencement Date": The later of December 1, 1996 ("the
----------------
anticipated Commencement Date"), or the date Landlord can deliver to Tenant
possession of the Premises.
(f) "Term": Not less than thirty-six (36) months commencing on the
---------------
Commencement Date, this Lease to end on the last day of the thirty-sixth (36th)
-------------------
calendar month after the Commencement Date.
(g) "Rent": The sum of eight hundred forty eight and 00/100----------
----------------------------------------------
DOLLARS ($848.00) per month as defined in Item 3. Rent and all other sums
------
payable by Tenant to Landlord under this Lease, plus any applicable tax, shall
be paid to Landlord, without demand, deduction or offset, at its office
presently located at 0000 X.X. Xxxxxxx 000, Xxxxx 000, Xxxxx, Xxxxxxx, 00000,
-------------------------------------------------------
or at such other place as Landlord may hereafter specify in writing.
(h) "Security Deposit": The sum of nine hundred three and 12/100------
----------------------------------
DOLLARS ($903.12).
------
(i) "Operating Expense Base": $4.00 per rentable square foot of
----
Premises per annum.
(j) "Proportionate Share": The rentable area in the Premises (848
---
square feet) divided by the rentable area in the Building (78,314 square feet)
------
which equals 1.082 percent. If, the size of the Premises is for any reason
-----
adjusted, Tenant's Proportionate share shall be likewise adjusted accordingly.
2. PREMISES AND TERM. Landlord, in consideration of the Rent hereinafter
-----------------
reserved to be paid and of the covenants, conditions and agreements to be kept
and performed by Tenant, hereby leases, lets and demises to Tenant, and Tenant
hereby leases and hires from Landlord, that certain space called the Premises as
described above in Item 1, Section (c).
i
If Landlord, for any reason whatsoever, cannot deliver possession of the
Premises to Tenant on or before the anticipated Commencement Date, this Lease
shall not be void or voidable, nor shall Landlord be liable to Tenant for any
loss or damage resulting therefrom, but, in that event, there shall be an
abatement of Rent covering the period between the anticipated Commencement Date
and the time when Landlord can deliver possession, the date when Landlord can
deliver possession being deemed to be the "Commencement Date" (Commencement
Date). The ending date of this Lease shall be extended for not less than an
identical period of time that transpired between the anticipated Commencement
Date and the date Landlord delivered possession (Commencement Date), it being
the parties' intent that this Lease have not less than a complete term as
described and contemplated in Item 1, Section (f) above. To this end, if the
actual Commencement Date is a day other than the first day of a particular
month, the term of the Lease shall not expire until the last day of the last
month of the proposed term as described in Item 1, Section (f). If the
Commencement Date is other than the anticipated Commencement Date, the parties'
representatives shall execute a letter amendment to this Lease (which they are
hereby authorized to do) whereby the Commencement Date and expiration date of
this Lease will be specified. By occupying the Premises, Tenant shall be
conclusively deemed to have accepted the Premises as complying fully with
Landlord's covenants and obligations.
3. RENT. Tenant covenants and agrees to pay, without demand, deduction or
----
offset, to Landlord Rent and Additional Rent for the Premises as described above
in Item 1, Section (g), on or before the first (1st) day of the first (1st) full
calendar month of the term hereof and on or before the first (1st) day of each
and every successive calendar month thereafter during the full term of this
Lease, subject to the adjustments as provided hereinafter, along with any
applicable tax, at the then current rate. In the event the Commencement Date
occurs on a day other than the first (1st) day of a calendar month, the first
Rent payment shall be in the amount of the Rent for one (1) full calendar month
plus the prorated Rent for the calendar month in which the term of this Lease
commences, such payment to be due on the Commencement Date.
Whenever under the terms of this Lease any sum of money is required to be
paid by Tenant in addition to the Rent herein reserved, whether or not such sum
is herein described as "Additional Rent" or a provision is made for the
collection of said sum as "Additional Rent", said sum shall nevertheless, at
Landlord's option, if not paid when due, be deemed Additional Rent, and shall be
collectible as such with the first installment of Rent thereafter falling due
hereunder. In the event any installment or increment of Rent or Additional Rent
payable under this Lease shall not be paid when due, a "late charge" of five
percent (5%) of the amount overdue may be charged (as Additional Rent) by
Landlord for the purpose of defraying the expense incident to handling such
overdue payment and for the purpose of compensating Landlord for its attendant
loss of cash flow.
4. CONSUMER PRICE ADJUSTMENT. For the purposes of this Lease: "Index" means
-------------------------
the Consumer Price Index for All Urban Consumers, all items, U.S. City Average
(1982-84=100) issued by the Bureau of Labor Statistics of the United States
Department of Labor. If the manner in which such Index is determined by the
Bureau of Labor Statistics is substantially revised, then the Bureau of Labor
Statistics shall be requested to furnish a statement converting the Index
published most recently prior to the start of the immediately preceding Lease
Year (as hereinafter defined) to a figure that would be comparable to the
revised Index published most recently prior to the start of the new Lease Year.
If the 1982-84 average shall no longer be used as an Index of 100, such change
shall constitute a substantial revision. If the Consumer Price Index published
by the Bureau of Labor Statistics is discontinued, then the Index shall be the
Consumer Price Index published by the U.S. Department of Commerce with
appropriate adjustment. If the U.S. Department of Commerce Index is
discontinued, then Landlord and Tenant shall agree on a reasonable substitute.
"Lease Year" means the twelve (12) month period beginning on (a) the first day
of the calendar month following the Commencement Date, or the Commencement Date
if the Commencement Date is the first day of the month, or (b) each anniversary
of the first day of the calendar month following the Commencement Date or each
anniversary of the Commencement Date if the Commencement Date is the first day
of the month. The Rent specified in Item 3 shall be paid during the first Lease
Year. On the first day of each and every Lease Year after the first Lease Year,
the Rent, as increased by previous Rent adjustments hereunder, shall be
increased by an amount equal to the product of the Rent, as increased by
previous Rent adjustments hereunder, multiplied by the difference, expressed as
a percentage, between the Index published most recently prior to the start of
such new Lease Year and the Index published most recently prior to the start of
the immediately preceding Lease Year. Tenant shall have thirty (30) days
following the submission to it by Landlord of each applicable Consumer Price
Adjustment calculation to object to such calculation. Should Tenant fail timely
to object to such calculation, which objection, to be effective, must be in
writing and must state the particulars of such objection, then, the parties
understand and agree, Landlord's calculation shall be conclusively deemed to be
correct.
ii
5. OPERATING EXPENSE ADJUSTMENTS. The parties each acknowledge that the
-----------------------------
Rent specified in Item 3 of the Lease does not provide for increases in
operating expenses, real estate taxes, and utility casts which may hereafter
affect the Premises or the Building; accordingly, during the term of this Lease,
and any renewals thereof, Tenant shall pay to Landlord, in the form of
Additional Rent (plus any applicable tax), its Proportionate Share of increased
expenses over the base amount as defined in Item 1, Section (j).
To implement and effect the foregoing obligation of Tenant to pay its
Proportionate Share of the expenses, taxes and costs referenced in this Item 5,
the parties agree that Tenant shall pay Landlord on or before the first day of
each calendar month one-twelfth (1/12) of the amount of Tenant's estimated
annualized liability for such expenses, taxes and costs for the coming calendar
year. Any amount paid by Tenant which exceeds the correct amount due shall be
credited to the next succeeding payment due under this Item 5. If Tenant has
paid less than the correct amount due, Tenant shall pay the balance within ten
(10) days of receipt of notice from Landlord. If the term of this Lease shall
begin or end other than on the first day or last day of a calendar year, the
foregoing expenses, taxes and costs shall be billed and adjusted on the basis of
such fraction of a calendar year. Tenant's obligation to pay the adjustments
described in this Item 5 shall survive the expiration of this Lease. Tenant
shall have thirty (30) days following the submission to it by Landlord of each
applicable adjustment calculation to object to each such calculation. Should
Tenant fail duly and timely to object to each such calculation, which objection
to be effective, must be in writing and must state the particulars of such
objection, then, the parties understand and agree, Landlord's calculation shall
be conclusively deemed to be correct.
The term "Real Estate Taxes" shall mean the annual taxes and any special
assessments or other charges levied against the real property of which the
Premises are a part by any authority having the direct power so to tax,
including any city, county, state or Federal government, or any school,
agricultural, transportation or environmental control agency, lighting,
drainage, or other improvement district thereof, and shall include the expense
of contesting the amount or validity of any such taxes, charges or assessments.
The term "Operating Expenses" shall include the annual expenses of Landlord for
the operation and maintenance of the Building and the Premises which are
reasonable or customary for the operation of this type of Premises and Building,
and shall include, but not be limited to, management salaries, consultants'
fees, maintenance and janitorial expense, administrative salaries, costs and
fees, insurance, security and landscaping. The term "Utility Costs" shall
include Landlord's annual expenses for the operation and maintenance of the
Building and Premises with respect to utility charges for furnishing heat,
air-conditioning, electricity, water, sewerage, gas, garbage removal, etc.
6. USE OF PREMISES. The Premises shall be used by Tenant as described
---------------
above in Item 1, Section (d), and for no other purpose without the prior written
discretionary consent of Landlord. Tenant shall not do or permit to be done in
or about the Premises, nor bring or keep or permit to be brought or kept
therein, anything which is prohibited by or will in any way conflict with any
law, statute, ordinance or governmental rule or regulation now in force or which
may hereafter be enacted or promulgated, or which is prohibited by any standard
form of fire insurance policy or will in any way increase the existing rate of
or affect any fire or other insurance upon the Building or any of its contents
or cause a cancellation of any insurance policy covering the Building or any
part thereof or any of its contents. Tenant shall not do or permit anything to
be done in or about the Premises which will in any way obstruct or interfere
with the rights of other tenants of the Building, or injure or annoy them or use
or allow to be used the Premises for any improper, immoral, unlawful or
objectionable purpose (as determined by Landlord); nor shall Tenant cause,
maintain, or permit any nuisance (as determined by Landlord or by law) in or
about the Premises or commit or suffer to be committed any waste in, on, or
about the Premises. Tenant, at Tenant's expense, shall comply with all laws,
rules, orders, statutes, ordinances, directions, regulations and requirements of
all federal, state, county and municipal authorities pertaining to Tenant's use
of the Premises and with the recorded covenants, conditions and restrictions
pertaining thereto, regardless of when they become effective or applicable,
including, without limitation, all applicable federal, state and local laws,
regulations or ordinances pertaining to air and water quality, hazardous
materials, waste disposal, air emissions and other environmental matters, all
zoning and other land use matters, and with any direction of any public officer
or officials which shall impose any duty upon Landlord or Tenant with respect to
the use or occupation of the Premises.
7. ASSIGNMENT AND SUBLETTING. Tenant shall not assign the right of
-------------------------
occupancy under this Lease, or any other interest therein, or sublet the
Premises, or any portion thereof, without the prior written consent of Landlord,
which the parties agree may be withheld at Landlord's sole discretion. Tenant
absolutely shall have no right of assignment or subletting if it is or has
everbeen in default of this Lease. Should Landlord elect to grant its written
consent to any proposed assignment or sublease (whether by Tenant or by others
claiming by or through Tenant), Tenant or such others agree to pay Landlord an
administrative fee in a reasonable amount (but not less than $150.00), plus
attorney's fees
iii
to process and approve such assignment or sublease, and Landlord may prescribe
the substance and form of such assignment or sublease.
Notwithstanding any assignment of the Lease, or the subletting of the
Premises, or any portion thereof, Tenant shall continue to be fully liable for
the performance of the terms, conditions and covenants of this Lease, including,
but not limited to, the payment of Rent and Additional Rent. Consent by Landlord
to one or more assignments or sublettings shall not operate as a waiver of
Landlord's rights as to any subsequent assignments or sublettings. Landlord
shall have the additional option, which shall be exercised by providing Tenant
with written notice, of terminating Tenant's rights and obligations under this
Lease rather than permitting any assignment or subletting by Tenant, any
statement or implication in this Lease or at law to the contrary
notwithstanding.
Should Landlord permit any assignment or subletting by Tenant and should
the monies received as a result of such assignment or subletting (when compared
to the monies still payable by Tenant to Landlord) be greater than would have
been received hereunder had not Landlord permitted such assignment or
subletting, then the excess shall be payable by Tenant to Landlord, it being the
parties' intention that Landlord, and not Tenant, in consideration for
Landlord's permitting such assignment or subletting, shall be the party to
receive any profit from any such assignment or subletting. If there are one or
more assignments or sublettings by Tenant to which Landlord consents, then any
and all renewal options to be exercised subsequent to the date of such
assignment or subletting and all options to lease additional space in the
Building to be exercised subsequent to the date of such assignment or subletting
are absolutely waived and terminated at Landlord's sole discretion. In the event
of the transfer and assignment by Landlord of its interest in this Lease and/or
sale of the Building containing the Premises, either of which it may do at its
sole option, Landlord shall thereby be released from any further obligations
hereunder, and Tenant agrees to look solely to such successor in interest of
Landlord for performance of such obligations. The provisions of Item 36
hereafter dealing with "Notices" shall be amended to provide the correct names
and addresses of the assignee or sublessee. If Tenant is a corporation whose
stock is not regularly traded on a bona fide public exchange, and if any
transfer, sale, pledge or other disposition of the common stock shall occur
which changes the power to vote the majority of the outstanding capital stock of
the company, such action shall be considered an assignment under the terms of
this Lease. Any breach of this Item 7 by Tenant will constitute an automatic
default under the terms of this Lease, per Item 20 hereof.
8. ACCESS TO PREMISES. Landlord or its authorized agent or agents shall
------------------
have the right to enter upon the Premises at all reasonable times for the
purposes of inspecting the same, preventing waste, making such repairs as
Landlord may consider and showing the Premises to prospective tenants,
mortgagees and/or purchasers. If during the last month of the term, Tenant shall
have removed all or substantially all of Tenant's property therefrom, Landlord
may immediately enter and alter, renovate and redecorate the Premises without
elimination or abatement of Rent or incurring liability to Tenant for any
compensation or offsets in Rent and charges owed and such acts shall have no
effect upon this Lease.
9. LANDLORD'S SERVICES. Landlord shall, at its expense, furnish the
-------------------
Premises with (i) electricity subject to Item 10 of this Lease; (ii) heat and
air-conditioning during reasonable and usual business hours (exclusive of
Saturdays, Sundays and holidays) reasonably required for the occupation of the
Premises, such heat and air-conditioning to be provided by utilizing the
existing Building systems it being expressly understood and agreed by the
parties that Landlord specifically shall not be liable for any losses or damages
of any nature whatsoever incurred by Tenant due to any failure of the equipment
to function properly, or while it is being repaired, or due to any governmental
laws, regulations or restrictions pertaining to the furnishing or use of such
heat and air-conditioning; (iii) elevator service; (iv) lighting replacement for
Building Standard lights; (v) toilet room supplies; (vi) daily janitor service
during the time and in the manner that such janitor service is customarily
furnished in first class office buildings in the metropolitan area where the
Building is located; (vii) water; and (viii) sewerage. The foregoing services
are designated "Building Standard."
Tenant agrees that Landlord is only responsible for Building Standard
maintenance and Building Standard services. If other, more complete or special
services and maintenance (over Building Standard are required), then Tenant
solely shall be and is responsible for same and for any expenses and costs of
any nature whatsoever associated with same. To this end, Tenant is and shall be
solely responsible for any expenses and costs of any nature whatsoever
associated with, among other things, maintaining upgraded tenant improvements in
the Premises, replacing non-Building Standard lighting fixtures and bulbs in the
Premises, servicing, operating and maintaining any separate and non-Building
Standard HVAC systems and facilities serving the Premises, etc.
Landlord shall not be liable for any damages directly or indirectly or
consequentially resulting from,
iv
nor shall any Rent herein set forth be reduced or abated by reason of, (1)
installation, use, or interruption of use of any equipment in connection with
the furnishing of any of the foregoing services, or (2) failure to furnish, or
delay in furnishing, any such services when such failure or delay is caused by
accident or any condition beyond the reasonable control of Landlord or by the
making of necessary repairs or improvements to the Premises or to the Building
or because of any governmental laws, regulations or restrictions. The temporary
failure to furnish any such services shall not be construed as an eviction of
Tenant or relieve Tenant from the duty of observing and performing any and all
of the provisions of this Lease.
10. ELECTRICAL OVERLOAD: STRUCTURAL OVERLOAD.
----------------------------------------
A. Tenant's use of electrical services furnished by Landlord shall
be subject to the following:
(1) Tenant's electrical equipment shall be restricted to that
equipment which individually does not have a rated capacity
greater than .5 kilowatts per hour and/or require voltage
other than 120/208 volts, single phase. Collectively,
Tenant's equipment shall not have an electrical design load
greater than an average of 3 xxxxx per square foot
(including overhead lighting).
(2) Tenant's overhead lighting shall not have a design load
greater than an average of 2 xxxxx per square foot.
(3) If Tenant's consumption of electrical services exceeds
either the rated capacities and/or design loads as per
subsections (1) and (2) above, then Tenant shall remove such
equipment and/or lighting to achieve compliance within ten
(10) days after receiving notice from Landlord. Or upon
receiving Landlord's prior written approval, such equipment
and/or lighting may remain in the Premises, subject to the
following:
(a) Tenant shall pay for all costs of installation and
maintenance of submeter, wiring, air-conditioning and
other items required by Landlord, in Landlord's
discretion, to accommodate Tenant's excess design loads
and capacities;
(b) Tenant shall pay to Landlord, upon demand, the cost of
the excess demand and consumption of electrical service
at rates determined by Landlord which shall be in
accordance with any applicable laws;
(c) Landlord may, at its option, upon not less than thirty
(30) days' prior written notice to Tenant, discontinue
the availability of such extraordinary utility service.
If Landlord gives any such notice, Tenant will contract
directly with the public utility for the supplying of
such utility service to the Premises.
B. Tenant shall not place a load upon any floor of the Premises
exceeding the floor load per square foot area which such floor was designed to
carry and which may be allowed by law. Landlord reserves the right to prescribe
the weight and position of all heavy equipment and similar items, and to
prescribe the reinforcing necessary, if any, which in the opinion of Landlord
may be required under the circumstances, such reinforcing to be at Tenant's
pre-paid expense.
11. PARKING AREAS. Landlord shall keep and maintain in good condition any
-------------
parking areas that may be provided. Landlord reserves the right to control the
method, manner and time of parking in parking spaces.
12. LEASEHOLD IMPROVEMENTS. The Premises are rented "as is", without any
----------------------
additional services or improvements to be rendered by Landlord, other than those
services described in Item 9 and such other services or improvements as may be
described in Exhibit "B" attached hereto and expressly made a part hereof. If
Landlord is to additionally alter, remodel, improve, or do any physical act or
thing to the space as presently constituted or as described in Exhibit "B", same
shall be at the sole expense of Tenant and shall be effected only by an "Extra
Work Agreement" signed by the parties, the monies due Landlord from Tenant for
which shall be deemed "Additional Rent" hereunder. In the absence of an "Extra
Work Agreement" signed by the parties, Landlord is under no obligation to make
any such alteration, remodeling or improvement or do any physical act or thing
to the space.
v
Any and all extraordinary expenses and costs of any nature whatsoever
attributable to the installation maintenance and/or removal of telephone
equipment, computer equipment and the like shall be borne solely by Tenant and
may be deemed by Landlord to be "Additional Rent" hereunder.
13. REPAIRS AND MAINTENANCE. Landlord will, at its own cost and expense,
------------------------
except as may be provided elsewhere herein, make necessary repairs of damage to
the Building corridors, lobby, structural members of the Building, and equipment
used to provide the Building Standard services referred to in Item 9, unless any
such damage is caused by acts or omissions of Tenant, its agents, customers,
employees, principals, contractors, consultants, assigns, subtenants or
invitees, in which event Tenant will bear the cost of such repairs. Tenant will
not injure the Premises or the Building but will maintain the Premises in a
clean, attractive condition and in good repair, except as to damage to be
repaired by Landlord as provided above. Upon termination of this Lease, Tenant
will surrender and deliver the Premises to Landlord in the same condition in
which they existed at the commencement of the Lease, excepting only ordinary
wear and tear and damage arising from any cause not required to be repaired by
Tenant. This Item 13 shall not apply in the case of damage or destruction by
fire or other casualty which is covered by insurance maintained by Landlord on
the Building (as to which Item 16 hereof shall apply) or damage resulting from
an Eminent Domain taking (as to which Item 18 hereof shall apply).
14. ALTERATIONS AND IMPROVEMENTS. Tenant shall make no alterations,
-----------------------------
additions or improvements to the Premises without the prior written approval of
Landlord, unless in each instance and for each such alteration, addition or
improvement Landlord or a contractor approved by Landlord is hired to do such
alterations, additions or improvements. Such approval shall not be unreasonably
withheld in the case of alterations, additions or improvements to the interior
of the Premises if such alterations, additions, or improvements are normal for
the use described in Item 1 (d) of this Lease, do not adversely affect utility
of the Premises for future tenants, do not alter the exterior of the Building,
and are accompanied by prepayment or bond provisions or waivers by the
contractor in form satisfactory to Landlord sufficient to protect the Building
from claims of lien of any sort; otherwise, such approval may be withheld for
any reason whatsoever. Furthermore, such alterations, additions or improvements
absolutely shall not affect the mechanical, plumbing, electrical and HVAC
systems in the Premises or the Building and shall not be of a structural nature.
Tenant shall conduct its work in such a manner as to maintain harmonious labor
relations and as not to interfere with the operation of the Building and shall,
prior to the commencement of the work, submit to Landlord copies of all
necessary permits. Landlord reserves the right to have final approval of the
contractors hired by Tenant. All such contractors hired by Tenant shall be, at
levels and coverages prescribed by Landlord, bonded and insured, and Landlord
may require evidence of same, which Tenant agrees to secure and provide Landlord
prior to the commencement of any work by such contractors. All alterations,
additions or improvements, whether temporary or permanent in character, made in
or upon the Premises, either by Landlord or Tenant, shall be Landlord's property
and at the end of the term hereof shall remain in or upon the Premises without
compensation to Tenant. If, however, Landlord shall request in writing, Tenant
will, prior to the expiration or earlier termination of this Lease, remove any
and all alterations, additions and improvements placed or installed by Tenant in
the Premises, and will repair any damage caused by such removal. All of Tenant's
furniture, movable trade fixtures and equipment not attached to the Building may
be removed by Tenant at the expiration of this Lease, if Tenant so elects, and
shall be so removed, if required by Landlord, and, if not so removed, shall, at
the option of Landlord, become the property of Landlord. To the extent Tenant
makes any alterations, additions or improvements and/or to the extent Landlord
on behalf of Tenant under an "Extra Work Agreement" makes such alterations,
additions or improvements, and as a result thereof it can be determined that
thereupon was caused an increase in real estate taxes or insurance premiums,
then Tenant shall be responsible for reimbursing Landlord for such increases as
Landlord may pay.
15. INDEMNITY. Landlord shall not be liable for, and Tenant will
----------
indemnify and save Landlord harmless of and from, all fines, suits, damages,
claims, demands, losses and actions (including attorney's fees) for any injury
to person or damage to or loss of property on or about the Premises and Building
caused by the negligence or misconduct or breach of this Lease by Tenant, its
employees, agents, principals, contractors, consultants, assigns, subtenants,
invitees or by any other person entering the Premises or the Building under
express or implied invitation of Tenant, or arising out of Tenant's use of the
Premises. Landlord shall not be liable or responsible for any loss or damage to
any property or the death or injury to any person occasioned by theft, fire, act
of God, public enemy, injunction, riot, strike, insurrection, war, court order,
requisition of governmental body or authority, by other tenants of the Building
or by any other matter beyond the absolute control of Landlord, or for any
injury or damage or inconvenience which may arise through repair or alteration
of any part of the Building, or failure to make repairs, or from any cause
whatsoever except Landlord's negligence or intentional act. It is specifically
understood and agreed that there shall be no personal liability on Landlord with
respect to any of the covenants, conditions or provisions of this Lease; in the
event of a breach or default by
vi
Landlord of any of its obligations under this Lease, Tenant shall look solely to
the equity of Landlord in the Building for the satisfaction of Tenant's
remedies.
16. DAMAGE BY FIRE OR THE ELEMENTS. In the event that the Building is
-------------------------------
totally destroyed by fire, tornado or other casualty, or in the event the
Premises or Building is so damaged that rebuilding or repairs cannot be
completed within one hundred eighty (180) days after the date of such damage,
either Landlord or Tenant may, at its option, by written notice to the other
given not more than thirty (30) days after the date of such fire or other
casualty, terminate this Lease. In such event, the Rent shall be abated during
the unexpired portion of this Lease effective with the date of such fire or
other casualty.
In the event the Building or the Premises are damaged by fire, tornado, or
other casualty covered by Landlord's insurance but only to such extent that
rebuilding or repairs can be completed within one hundred eighty (180) days
after the date of such damage, or if the damage should be more serious but
neither Landlord nor Tenant elects to terminate this Lease, then Landlord shall,
within thirty (30) days after the date of such damage or such election, commence
to rebuild or repair the Building and/or the Premises and shall proceed with
reasonable diligence to restore the Building and/or the Premises to
substantially the same condition in which it/they was/were immediately prior to
the happening of the casualty, except that Landlord shall not be required to
rebuild, repair or replace any part of the furniture, equipment, fixtures and
other improvements which may have been placed by Tenant or other tenants within
the Building or Premises. Landlord shall, unless such damage is the result of
the negligence or willful misconduct of Tenant or Tenant's employees, agents,
principals, contractors, consultants, assigns, subtenants or invitees, allow
Tenant a fair diminution of Rent during the time of such rebuilding or repairs.
In the event any mortgagee, or the holder of any deed of trust, security
agreement or mortgage on the Building, requires that the insurance proceeds be
used to retire the mortgage debt, Landlord shall have no obligation to rebuild
and this Lease shall terminate upon notice to Tenant. Any insurance which may be
carried by Landlord or by Tenant against loss or damage to the Premises shall be
for the sole benefit of the party carrying such insurance and under its sole
control.
17. BUILDING RULES AND REGULATIONS. Tenant shall faithfully observe and
-------------------------------
comply with the Rules and Regulations printed on or annexed to this Lease and
all reasonable modifications of and additions thereto from time to time put into
effect by Landlord. Landlord shall not be responsible to Tenant for the
nonperformance of any of said Rules and Regulations by any other tenant or
occupant of the Building. Tenant shall and does hereby have an affirmative
obligation (to include indemnification of Landlord, per Item 15 hereof) to
notify its agents, employees, principals, assigns, subtenants and invitees of
the contents of such Rules and Regulations and of this Lease and to assure their
compliance therewith.
18. EMINENT DOMAIN. If the whole or a portion of the Building shall be
---------------
taken for any public or quasi-public use under any statute or by right of
Eminent Domain or private purchase in lieu thereof, then at Landlord's option,
but not otherwise, the term hereby demised and all rights of Tenant hereunder
shall immediately cease and terminate and the Rent shall be adjusted as of the
date of such termination. Tenant shall be entitled to no part of the award made
for such condemnation (or other taking) or the purchase price thereof.
Nevertheless, anything to the contrary notwithstanding, likewise at Landlord's
option, but not otherwise, if the Premises are unaffected by such condemnation
(or other taking), then this Lease and each and every one of its provisions
shall continue in full force and effect.
19. SIGNS AND ADVERTISING. Without the prior written approval of
----------------------
Landlord, which may be withheld at Landlord's discretion, Tenant shall not
permit the painting or display of any signs, placard lettering, or advertising
material of any kind on or near the exterior of the Premises or the Building.
Notwithstanding the foregoing, Tenant may, with Landlord's prior approval,
display Tenant's name on or near the entrance to the Premises, in a manner
prescribed by Landlord,
20. TENANT'S DEFAULT. Landlord, at its election, may exercise any one or
-----------------
more of the options referred to below upon the happening, or at any time after
the happening, of any one or more of the following events, to wit:
(a) Tenant's failure to pay the Rent, Additional Rent, or any other
sums payable hereunder for a period of three (3) days after
written notice by Landlord;
(b) Tenant's failure to observe, keep or perform any of the other
terms, covenants, agreements or conditions of this Lease or in
the Building Rules and Regulation for a period of ten (10) days
after written notice by Landlord;
vii
(c) The bankruptcy of Tenant;
(d) Tenant's making an assignment for the benefit of creditors;
(e) A receiver or trustee being appointed for Tenant or a substantial
portion of Tenant's assets;
(f) Tenant's voluntary petitioning for relief under, or otherwise
seeking the benefit of, any bankruptcy, reorganization,
arrangement or insolvency law;
(g) Tenant's deserting, vacating or abandoning any substantial
portion of the Premises or attempting to mortgage, or pledge or
otherwise encumber in any way its interest hereunder;
(h) Tenant's interest under this Lease being sold under execution or
other legal process;
(i) Tenant's interest under this Lease being modified or altered by
any unauthorized assignment or subletting or by operation of law;
(j) Any of the goods or chattels of Tenant used in, or incident to,
the operation of Tenant's business in the Premises being seized,
sequestered, or impounded by virtue of, or under authority of,
any legal proceeding;
(k) Tenant's failure to pay duly and timely the Rent, Additional
Rent, or any other sums payable hereunder when due for two (2)
consecutive months or for a total of four (4) months in any lease
or calendar year, no notice whatsoever to be due Tenant from
Landlord;
(l) Tenant's failure to operate continuously during normal business
hours from the Premises in a fully-staffed, fully-equipped manner
and/or as contemplated by Item 1 (d) of this Lease;
(m) Tenant's failure to take occupancy of the Premises when same is
tendered by Landlord to Tenant, unless Rent has been prepaid to
cover the applicable period of non-occupancy.
In the event of any of the foregoing happenings, Landlord, at its election,
may exercise any one or more of the following options, the exercise of any of
which shall not be deemed to preclude the exercise of any others herein listed
or otherwise provided by statute or general law at the same time or in
subsequent times or actions:
(1) Terminate Tenant's right to possession under the Lease and
re-enter and retake possession of the Premises and relet or
attempt to relet the Premises on behalf of Tenant at such rent
and under such terms and conditions as Landlord may deem best
under the circumstances for the purpose of reducing Tenant's
liability. Landlord shall not be deemed to have thereby accepted
a surrender of the Premises, and Tenant shall remain liable for
all Rent, Additional Rent, or other sums due under this Lease and
for all damages suffered by Landlord because of Tenant's breach
of any of the covenants or the Lease.
(2) Declare this Lease to be terminated, ended and null and void, and
re-enter upon and take possession of the Premises whereupon all
right, title and interest of Tenant in the Premises shall end.
(3) Accelerate and declare the entire remaining unpaid Rent and
Additional Rent for the balance of this Lease to be immediately
due and payable forthwith, and may, at once, take legal action to
recover and collect the same.
No re-entry or retaking possession of the Premises by Landlord shall be
construed as an election on its part to terminate this Lease, unless a written
notice of such intention be given to Tenant, nor shall pursuit of any remedy
herein provided constitute a forfeiture or waiver of any Rent or other monies
due to Landlord hereunder or of any damages accruing to Landlord by reason of
the violations of any of the terms, provisions and covenants herein contained.
Landlord's acceptance of Rent or Additional Rent or other monies following any
event of default hereunder shall not be construed as Landlord's waiver
viii
of such event of default. No forbearance by Landlord of action upon any
violation or breach of any of the terms, provisions, and covenants herein
contained shall be deemed or construed to constitute a waiver of the terms,
provisions, and covenants herein contained. Forbearance by Landlord to enforce
one or more of the remedies herein provided upon an event of default shall not
be deemed or construed to constitute a waiver of any other violation or default.
Legal actions to recover for loss or damage that Landlord may suffer by reason
of termination of this Lease or the deficiency from any reletting as provided
for above shall include the expense of repossession or reletting and any repairs
or remodeling undertaken by Landlord following repossession.
The parties hereto shall, and they hereby do, waive trial by jury in any
action, proceeding, or counterclaim brought by either of the parties hereto
against the other on any matters whatsoever arising out of, or in any way
connected with, this Lease, the relationship of landlord and tenant, Tenant's
use or occupancy of the Premises and/or Building, and/or claim of injury or
damage. In the event Landlord commences any proceeding to enforce this Lease or
the landlord/tenant relationship between the parties or for nonpayment of Rent
(of any nature whatsoever) or additional monies due Landlord from Tenant under
this Lease, Tenant will not interpose any counterclaim of whatever nature or
description in any such proceedings. In the event Tenant must, because of
applicable court rules, interpose any counterclaim or other claim against
Landlord in such proceedings, Landlord and Tenant covenant and agree that, in
addition to any other lawful remedy of Landlord, upon motion of Landlord, such
counterclaim or other claim asserted by Tenant shall be severed out of the
proceedings instituted by Landlord (and, if necessary, transferred to a court of
different jurisdiction), and the proceedings instituted by Landlord may proceed
to final judgement separately and apart from and without consolidation with or
reference to the status of each counterclaim or any other claim asserted by
Tenant.
The parties hereto agree that any and all suits for any and every breach of
this Lease shall be instituted and maintained only in those courts of competent
jurisdiction in the county or municipality in which the Building is located. In
the event it shall become necessary (as determined by Landlord) for Landlord at
any time to institute or defend any legal action or proceedings of any nature
for the enforcement of, or as regards, this Lease, or any of the provisions
hereof, or any of its statutory or common law rights as concern Tenant, or to
employ an attorney therefor, Tenant agrees to pay all court costs and attorney's
fees incurred by Landlord.
Time is of the essence of this Lease; and in case Tenant shall fail to
perform the covenants on its part to be performed at the time fixed for the
performance of such respective covenants by the provisions of this Lease,
Landlord may declare Tenant to be in default of such Lease.
21. CONTRACTUAL LANDLORD'S LIEN. Landlord shall have, at all times, a
---------------------------
valid security interest to secure payment of all Rent, Additional Rent and other
sums of money becoming due hereunder from Tenant, and to secure payment of any
damages or loss which Landlord may suffer by reason of the breach by Tenant of
any covenant, agreement or condition contained herein, upon all goods, wares,
equipment, fixtures, furniture, improvements and other personal property of
Tenant presently or which may hereinafter be situated in the Premises, and all
proceeds therefrom, and such property shall not be removed therefrom without the
consent of Landlord until all arrearages in Rent as well as any and all other
sums of money then due to Landlord hereunder shall first have been paid and
discharged and all of the covenants, agreements, and conditions hereof have been
fully complied with and performed by Tenant. In consideration of this Lease,
upon the occurrence of an event of default by Tenant, Landlord may, in addition
to any other remedies provided herein, enter upon the Premises and take
possession of any and all goods, wares, equipment, fixtures, furniture,
improvements, and other personal property of Tenant situated on or in the
Premises, without liability for trespass or conversion, and sell the same at
public or private sale, with or without having such property at the sale, after
giving Tenant reasonable notice of the time and place of any public sale or of
the time after which any private sale is to be made, at which sale Landlord or
its assigns may purchase unless otherwise prohibited by law. Unless otherwise
provided by law, and without intending to exclude any other manner of giving
Tenant reasonable notice, the requirement of reasonable notice shall be met if
such notice is given in the manner prescribed in Item 36 dealing with "Notices"
in this Lease at least five (5) days before the time of sale. The proceeds from
any such disposition, less any and all expenses connected with the taking of
possession, holding and selling of the property (including reasonable attorney's
fees and other expenses), shall be applied as a credit against the indebtedness
secured by the security interest granted in this Item 21. Any surplus shall be
paid to Tenant or as otherwise required by law, and Tenant shall pay any
deficiencies forthwith. Upon request by Landlord, Tenant agrees to execute and
deliver to Landlord a financing statement in form sufficient to perfect the
security interest of Landlord in the aforementioned property and proceeds
thereof under the provisions of the Uniform Commercial Code in force in the
State of Florida The foregoing lien rights shall be in addition to and not in
derogation of any statutory or common law lien right under the laws of the state
of Florida.
ix
22. SUBORDINATION. In consideration of the execution of this Lease by
--------------
Landlord, Tenant accepts this Lease subject to any deeds of conveyance and any
deeds of trust, master leases, security interests or mortgages and all renewals,
modifications, extensions, spreads, consolidations and replacements of the
foregoing which might now or hereafter constitute a lien upon the Building (or
the land upon which it is situated) or improvements therein or thereon or upon
the Premises and to zoning ordinances and other building and fire ordinances and
governmental regulations relating to the use of the property. Although no
instrument or act on the part of Tenant shall be necessary to effectuate such
subordination, Tenant shall, nevertheless, for the purpose of confirmation, at
any time hereafter, on demand in the form(s) prescribed by Landlord, execute any
instruments, estoppel certificates, releases or other documents that may be
requested or required by any purchaser or any holder of any superior interest
for the purposes of subjecting and subordinating this Lease to such deed of
conveyance or to the lien of any such deed of trust, master lease, security
interest, mortgage, or superior interest. Tenant hereby appoints Landlord
attorney-in-fact, irrevocably, to execute and deliver any such instrument or
document for Tenant should Tenant fail or refuse to do so.
23. QUIET ENJOYMENT. Provided Tenant has fully, duly and timely
----------------
performed all of the terms, covenants, agreements and conditions of this Lease
on its part to be performed, including the payment of Rent and all other sums
due hereunder, Tenant shall peaceably and quietly hold and enjoy the Premises,
except as described in Item 22 above, against Landlord and all persons claiming
by, through or under Landlord, for the term herein described, subject to the
provisions and conditions of this Lease.
24. SECURITY DEPOSIT. Tenant, concurrently with the execution of this
-----------------
Lease, has deposited or will deposit with Landlord a Security Deposit as
described in Item 1, Section (h), which sum shall be retained by Landlord as a
Security Deposit. The Security Deposit shall be held by Landlord without
liability for interest and as security for the performance by Tenant of Tenant's
covenants and obligations under this Lease, it being expressly understood that
such deposit shall not be considered an advance payment of Rent or Additional
Rent or a measure of Landlord's damages in case of default by Tenant. Upon the
occurrence of any event of default by Tenant, Landlord may, from time to time,
without prejudge to any other available remedy, use such deposit to the extent
necessary to make good any arrearages of Rent, Additional Rent and any other
damage, injury, expense or liability caused to Landlord by such event of
default. 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 then in default hereunder, any
remaining balance of such deposit shall be returned by Landlord to Tenant upon
expiration of this Lease. If Landlord transfers its ownership interest in the
Building during the Lease term, Landlord may assign the Security Deposit to the
transferee and thereafter Landlord shall have no further liability for the
return of such Security Deposit.
25. MECHANIC'S LIENS. Tenant is prohibited from making, and agrees not
-----------------
to make, alterations in the Premises, except as permitted by Item 14, and Tenant
will not permit any mechanic's lien or liens to be placed upon the Premises or
the Building or improvements thereon during the term hereof caused by or
resulting from any work performed, materials furnished or obligation incurred by
or at the request of Tenant, and in the case of the filing of any such lien,
Tenant will promptly pay same. If default in payment thereof shall continue for
ten (10) days after written notice thereof from Landlord to Tenant, Landlord
shall have the right and privilege, at Landlord's option, of paying the same or
any portion thereof without inquiry as to the validity thereof, and any amounts
so paid, including expenses, interest, and attorney's fees, shall be so much
additional indebtedness hereunder due from Tenant to Landlord and shall be
repaid to Landlord immediately on rendition of a xxxx therefor, together with
interest per annum at the maximum rate permitted by law until repaid, and if not
so paid within ten (10) days of the rendition of such xxxx shall constitute
default under Item 20 hereof.
The interest of Landlord shall not be subject to liens for improvements
made by Tenant in and to the Premises. Tenant shall notify every contractor
making such improvements of the provision set forth in the preceding sentence of
this paragraph. The parties agree, should Landlord so request, to execute
acknowledge and deliver without charge to the other a Memorandum of Lease in
recordable form containing a confirmation that the interest of Landlord shall
not be subject to liens for improvements made by Tenant to the Premises.
26. FORCE MAJEURE. Whenever a period of time is herein prescribed for
--------------
action to be taken by Landlord, Landlord shall not be liable or responsible for,
and there shall be excluded from the computation for any such period of time,
any delays due to strikes, riots, acts of God, shortages of labor or materials,
theft, fire, public enemy, injunction, insurrection, court order, requisition of
governmental body or authority, war, governmental laws, regulations or
restrictions or any other causes of any kind whatsoever which are beyond the
absolute control of Landlord.
x
27. SEVERABILITY. If any clause or provision of this Lease is illegal,
------------
invalid or unenforceable under present or future laws effective during the term
of this Lease, then and in that event, it is the intention of the parties hereto
that the remainder of this Lease shall not be affected thereby.
28. HOLDING OVER. The failure of Tenant to surrender the Premises on the
------------
date provided herein for the expiration of the term of this Lease (or at the
time the Lease may be terminated otherwise by Landlord), and the subsequent
holding over by Tenant, with or without the consent of Landlord, shall result in
the creation of a tenancy at will at double the Rent payable at the time of the
date provided herein for the expiration of this Lease or at the time the Lease
may be terminated otherwise by Landlord. This provision does not give Tenant any
right to hold over at the expiration of the term of this Lease, and shall not be
deemed, the parties agree, to be a renewal of the Lease term, either by
operation of law or otherwise.
29. RELOCATION. If the Premises consist of less than two thousand, five
----------
hundred (2,500) square feet, Landlord may at any time during the term (as may be
extended) of this Lease relocate Tenant and substitute for the Premises other
space (which would then become the "Premises" for the purposes of this Lease) in
the Building. The parties expressly agree that Landlord shall pay the reasonable
physical moving costs of such relocation, but shall not be responsible for any
other expenses, costs, damages or injuries of any nature whatsoever. Tenant's
new space shall be comparable to the Premises hereby leased. Tenant shall
relocate within thirty (30) days (or such additional time as Landlord may
direct) of Landlord's written notice to Tenant that Tenant do so. Tenant's
failure timely so to relocate shall be a Default (see Item 20 of this Lease), no
curative notice of any nature (after the expiration of such 30 day or additional
period) to be due Tenant from Landlord. Upon such a Default by Tenant, Landlord
shall have all the rights and remedies described in said Item 20.
30. RENT A SEPARATE COVENANT. Tenant shall not for any reason withhold
------------------------
or reduce Tenant's required payments of Rent and other charges provided in this
Lease, it being expressly understood and agreed contractually by the parties
that the payment of Rent and Additional Rent is a contractual covenant by Tenant
that is independent of the other covenants of the parties under this Lease.
31. JOINT AND SEVERAL LIABILITY. If two or more individuals,
---------------------------
corporations, partnerships, or other business association (or any combination of
two or more thereof) shall sign this Lease as Tenant, the liability of each such
individual, corporation, partnership or other business association to pay Rent
and perform all other obligations hereunder shall be deemed to be joint and
several. In like manner, if Tenant is a partnership or other business
association, the members of which are, by virtue of statute or general law,
subject to personal liability, the liability of each such member shall be joint
and several.
32. ABSENCE OF OPTION. The submission of this Lease for examination does
-----------------
not constitute a reservation of or option for the Premises, and this Lease
becomes effective only upon execution and delivery thereof by Landlord.
33. CORPORATE TENANCY. If Tenant is a corporation, the undersigned
-----------------
officer of Tenant hereby warrants and certifies to Landlord that Tenant is a
corporation in good standing and is authorized to do business in the State of
Florida. The undersigned officer of Tenant hereby further warrants and certifies
to Landlord that he or she, as such officer, is authorized and empowered to bind
the corporation to the terms of this Lease by his or her signature thereto.
Landlord, before it accepts and delivers this Lease, may require Tenant to
supply it with a certified copy of the corporate resolution authorizing the
execution of this Lease by Tenant. If Tenant is a corporation (other than one
whose shares are regularly and publicly traded on a recognized stock exchange),
Tenant represents that the ownership and power to vote its entire outstanding
capital stock belongs to and is vested in the officer or officers executing this
Lease or members of his, her or their immediate family. If there shall occur any
change in the ownership of and/or power to vote the majority of the outstanding
capital stock of Tenant, whether such change of ownership is by sale,
assignment, bequest, inheritance, operation of law or otherwise, without the
prior written consent of Landlord, then Landlord shall have the option to
terminate this Lease upon thirty (30) days' written notice to Tenant;
furthermore, Tenant shall have an affirmative obligation to notify immediately
Landlord of any such change.
34. BROKERAGE COMMISSION. Tenant warrants that there are no claims for
--------------------
broker's commissions or finder's fees in connection with its execution of this
Lease other than the commission due to Sun Cove Realty, Inc., which shall be
obligation of the Landlord, and agrees to indemnify and save Landlord harmless
from any liability that may arise from such claim, including reasonable
attorney's fees.
xi
35. LANDLORD'S DEFAULT. Landlord shall in no event be charged with
------------------
default in the performance of any of its obligations under this Lease unless and
until Landlord shall have failed to perform such obligations within ten (10)
days (or within such additional time as is reasonably required to remedy any
such default) after written notice to Landlord by Tenant properly specifying and
detailing the particulars of wherein and whereby Tenant claims Landlord has
failed to perform any such obligations. If the holder of record of the first
mortgage covering the Premises shall have given prior written notice to Tenant
that it is the holder of such first mortgage and such notice includes the
address at which notices to such mortgagee are to be sent, then Tenant shall
give such mortgagee notice simultaneously with any notice given to Landlord to
correct any default of Landlord as hereinabove provided. Such mortgagee shall
have the right within thirty (30) days (or within such additional time as is
reasonably required to correct any such default) after receipt of such notice to
corrector remedy such default before Tenant may take any action under this
Lease by reason of such default. Any notice of default given Landlord by Tenant
shall be null and void unless simultaneous notice has been given by Tenant to
said first mortgagee. It is specifically understood and agreed, anything in this
Lease to the contrary notwithstanding, that there shall be no personal liability
on Landlord with respect to any of the covenants, conditions or provisions of
this Lease; in the event of a breach or default by Landlord of any of its
obligations under this Lease, Tenant shall look solely to the equity of Landlord
in the Building for the satisfaction of Tenant's remedies, and in absolutely no
event shall Landlord be liable for prospective profits or special, indirect, or
consequential damages.
36. NOTICES. Any notice or document required or permitted to be delivered
-------
hereunder shall be deemed to be delivered or given when (a) actually received or
(b) signed for or "refused" as indicated on the postal service return receipt.
Delivery shall and must be by personal delivery or by United States mail,
postage prepaid, certified or registered mail, addressed to the parties hereto
at the respective addresses set out opposite their names below, or at such other
address as they may hereafter specify by written notice delivered in accordance
herewith:
LANDLORD: Striper Partners IV, Ltd.
0000 X.X. Xxx. 000, X
Xxxxx 000
Xxxxx, Xxxxxxx 00000
TENANT: Virtual Mortgage Network, Inc.
XxxXxxxxx Xxxx.
Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Attn: Xxxxxx Xxxxx
37. INSURANCE. Tenant shall not conduct or permit to be conducted any
----------
activity, or place any equipment, materials or other items in, on or about the
Premises or the Building, which will in any way increase the rate of fire or
liability or casualty insurance on the Building. Should Tenant fail to comply
with the foregoing covenant on its part to be performed, Tenant shall reimburse
Landlord for such increased amount upon written demand therefor from Landlord,
the same to be considered Additional Rent payable hereunder.
Tenant shall, at Tenant's sole expense, obtain and keep in force at all
times during the term of this Lease comprehensive general liability insurance,
including property damage, on an occurrence basis, with limits of not less than
One Million Dollars ($1,000,000.00) combined single limit, insuring Landlord and
Tenant against any liability arising out of the ownership, use, occupancy or
maintenance of the Premises and all areas appurtenant thereto. The limit of
said insurance shall not, however, limit the liability of Tenant hereunder.
Tenant may carry said insurance under a blanket policy, provided an endorsement
naming Landlord as an additional insured is attached thereto.
Tenant shall maintain insurance upon all property in the Premises owned by
Tenant or for which Tenant is legally liable. Tenant shall maintain insurance
against such other perils and in such amounts as Landlord may in writing from
time to time require. The insurance required to be obtained and maintained
under this Lease shall be with a company or companies licensed to issue the
relevant insurance and licensed to do business in the State of Florida. Such
insurance company or companies shall each have a policyholder's rating of no
less than "A" in the most recent edition of Best's Insurance Reports. No policy
------------------------
shall be cancellable or subject to reduction of coverage except after thirty
(30) days' prior written notice to Landlord. Landlord shall receive written
evidence of insurance upon request. All policies or insurance maintained by
Tenant shall be in a form, and shall have a substance, acceptable to
xii
Landlord with satisfactory evidence that all premiums have been paid. Tenant
agrees not to violate or permit to be violated any of the conditions or
provisions of the insurance policies required to be furnished hereunder, and
agrees to promptly notify Landlord of any fire or other casualty. If Tenant
fails to procure and maintain insurance as required hereunder, Landlord may do
so, and Tenant shall, on written demand, as Additional Rent, reimburse Landlord
for all monies expended by Landlord to procure and maintain such insurance.
Tenant hereby waives and releases Landlord of and from any and all
liabilities, claims and losses for which Landlord is or may be held liable to
the extent Tenant receives or is entitled to receive insurance proceeds on
account thereof.
Upon Landlord's written request for same, Tenant will provide Landlord with
written evidence of Tenant's compliance with its obligations under this Item 37.
38. RECORDING. This Lease shall not be recorded without Landlord's prior
---------
written consent.
39. STATUTORILY MANDATED NOTIFICATION. As required by F.S. 404.056(8),
---------------------------------
Landlord notifies Tenant as follows: "RADON GAS: Radon is a naturally occurring
radioactive gas that, when it has accumulated in a building in sufficient
quantities, may present health risks to persons who are exposed to it over time.
Levels of radon that exceed federal and state guidelines have been found in
buildings in Florida. Additional information regarding radon and radon testing
may be obtained from your county public health unit."
40. NON-DISCLOSURE. Tenant agrees that it will not divulge or disclosure
--------------
to third parties the terms, provisions and conditions of this Lease. Tenant's
breach of this Item 40 shall constitute a Default under Item 20 of this Lease,
no curative notice to Tenant from Landlord being required.
41. HAZARDOUS MATERIALS. Tenant shall not cause or permit any Hazardous
-------------------
Material (as hereinafter defined) to be brought upon, kept or used in or about
the Premises or the Building by Tenant, its agents, principals, employees,
assigns, sublessees, contractors, consultants or invitees without the prior
written consent of Landlord, which consent may be withheld for any reason
whatsoever or for no reason at all. If Tenant breaches the obligations stated in
the preceding sentence, or if the presence of Hazardous Material on the Premises
or around the Building caused or permitted by Tenant (or the aforesaid others)
results in contamination of the Premises or the Building or the surrounding
area(s), or if contamination of the Premises or the Building or the surrounding
area(s) by Hazardous Material otherwise occurs for which Tenant is legally,
actually or factually liable or responsible to Landlord (or any party claiming
by, through or under Landlord) for damages, losses, costs or expenses resulting
therefrom, then Tenant shall fully and completely indemnify, defend and hold
harmless Landlord (or any party claiming by, through or under Landlord) from any
and all claims, judgments, damages, penalties, fines, costs liabilities or
losses [including, without limitation: (i) diminution in the value of the
Premise and/or the Building and/or the land on which the Building is located
and/or any adjoining area(s) which Landlord owns or in which it holds a property
interest; (ii) damages for the loss or restriction on use of rentable or usable
space of any amenity of the Premises, the Building or the land on which the
Building is located; (iii) damages arising from any adverse impact on marketing
of space; and (iv) any sums paid in settlement of claims, attorneys' fees,
consultants fees and expert fees] which arise during or after the term of this
Lease, as may be extended, as a consequence of such contamination. This
indemnification of Landlord by Tenant includes, without limitation, costs
incurred in connection with any investigation of site conditions or any
clean-up, remedial, removal or restoration work required by any federal, state
or local government agency or political subdivision because of Hazardous
Material present in the soil or ground water on or under the Premises or the
Building. Without limiting the foregoing, if the presence of any Hazardous
Material on, under or about the Premises, the Building or the surrounding
area(s) caused or permitted by Tenant (or the aforesaid others) results in any
contamination of the Premises, the Building or the surrounding area(s), Tenant
shall immediately take all actions at its sole expense as are necessary or
appropriate to return the Premises, the Building and the surrounding area(s) to
the condition existing prior to the introduction of any such Hazardous Material
thereto; provided that Landlord's prior written approval of such actions by
Tenant shall be first obtained. The foregoing obligations and responsibilities
of Tenant shall survive the expiration or earlier termination of this Lease.
As used herein, the term "Hazardous Material" means any hazardous or toxic
substance, material or waster, including, but not limited to, those substances,
materials, and wastes listed in the United States Department of Transportation
Hazardous Materials Table (49 CFR 172.101) or by the Environmental Protection
Agency as hazardous substances (40 CFR Part 302) and amendments thereto, or such
substances, materials and wastes that are or become regulated under any
applicable local, state or federal law. "Hazardous Material" includes any and
all material or substances which are defined as "hazardous
xiii
waste", "extremely hazardous waste" or a "hazardous substance" pursuant to
state, federal or local governmental law. "Hazardous Substance" includes but is
not restricted to asbestos, polychlorobiphenyls ("PCB's") and petroleum.
Landlord and its agents shall have the right, but not the duty, to inspect
the Premises at any time to determine whether Tenant is complying with the terms
of this Lease. It Tenant is not in compliance with this Lease, Landlord shall
have the right to immediately enter upon the Premises to remedy any
contamination caused by Tenant's failure to comply, notwithstanding any other
provision of this Lease. Landlord shall use its best efforts to minimize
interference with Tenant's business, but shall not be liable for any
interference caused thereby.
Any non-compliance by Tenant with its duties, responsibilities and
obligations under this Item 41 shall be an "automatic" (no notice of any nature
from Landlord to Tenant being required) default of this Lease (see Item 20).
42. AMENDMENTS. This Lease contains the entire agreement between the
----------
parties hereto and may not be altered, changes or amended, except by written
instrument signed by both parties hereto. No provision of this Lease shall be
deemed to have been waived by Landlord unless such waiver is in writing signed
by Landlord and addressed to Tenant, nor shall any custom or practice which may
grow up between the parties in the administration of the provisions hereof be
construed to waive or lesson the right of Landlord to insist upon the
performance by Tenant in strict accordance with the terms hereof. The terms,
provisions, covenants, and conditions contained in this Lease shall apply to,
inure to the benefit of, and be binding upon the parties hereto, and upon their
respective successors in interest and legal representative, except as otherwise
herein expressly provided.
The parties acknowledge that they have read this Lease (to include its
Exhibits and attachments) in its entirety, that they are familiar with all of
the terms, covenants, provisions and conditions set forth therein and that there
are no other representations, understandings, warranties or agreements
concerning this Lease which do not appear in writing therein. The parties
further acknowledge that the terms and provisions contained within this Lease
have been fully, freely and fairly negotiated by and between them.
xiv
IN WITNESS WHEREOF, the parties, by and through their undersigned,
duly-authorized representatives, have executed this Lease for the purposes
therein expressed.
Signed, sealed and delivered
in the presence of: TENANT:
Virtual Mortgage Network, Inc.
By: /s/ Xxxx X. Xxxxxx
/s/ Xxx X. Xxxxxx --------------------------------
------------------------
Witness
Name: Xxxx X. Xxxxxx
-------------------------------
/s/ Xxxxx Xxxxxx
------------------------ Title: CEO/CFO
Witness ------------------------------
LANDLORD:
Striper Partners IV, Ltd.
By: /s/ Xxxxx X. Xxxxx, Xx.
-------------------------------
/s/ Xxxx Xxxxxx Name: Xxxxx X. Xxxxx, Xx.
------------------------ -----------------------------
Witness
Title: President of General Partner
----------------------------
/s/ Xxxxx X. Xxxxxxxx
------------------------
Witness
xv
[FLOOR PLAN APPEARS HERE]
-------------------------
XXXXX 000
000 XXXXXXXX XX
XXXXX 0/0" = 1' - 0"
8-12-96
-------------------------
PAGE
EXHIBIT "B"
SPECIFICATIONS
DOORS
-----
Interior
--------
Existing doors and frames with the exception of the following:
NONE..
Entry
-----
Existing doors and frames with the exception of the following:
NONE.
CEILING
-------
Existing grid and ceiling tile with the exception of the following:
NONE.
ELECTRIC
--------
Existing electrical with the exception of the following:
NONE.
LIGHTING
--------
Existing lights with the exception of the following:
NONE.
WALLS
-----
Existing walls with the exception of the following:
Repaint entire suite.
HVAC
----
Existing system with the exception of the following:
NONE.
FLOORING
--------
Existing flooring with the exception of the following:
New 26 ounce commercial grade carpet throughout suite.
OTHER
-----
Existing conditions with the exception of the following:
NONE.
xvii
BUILDING RULES AND REGULATIONS
The following Building Rules and Regulations have been adopted by Landlord
for the care, protection and benefit of the Premises and the Building and for
the general comfort and welfare of all tenants.
1. The sidewalks, entrances, passages, halls, elevators and stairways shall not
be obstructed by Tenant or used by Tenant for any purpose other than for ingress
and egress to and from the Building and Tenant's Premises.
2. Restroom facilities, water fountains, and other water apparatus shall not be
used for any purposes other than those for which they were constructed.
3. Landlord reserves the right to designate the time when freight, furniture,
goods, merchandise and other articles may be brought into, moved or taken from
Tenant's Premises or the Building.
4. Tenant shall not put additional locks or latches upon any door without the
written discretionary consent of Landlord. Any and all locks so added on any
door shall remain for the benefit of Landlord, and the keys to such locks shall
be delivered to Landlord by and from Tenant.
5. Landlord shall not be liable for injuries, damage, theft, or other loss to
persons or property that may occur upon or near any parking areas that may be
provided by Landlord. Tenant, its agents, employees, and invitees are to use
same at their own risk, Landlord to provide no security with respect thereto.
The driveways, entrances, and exits upon, into and from such parking areas shall
not be obstructed by Tenant, Tenant's employees, agents, guests, or invitees;
provided, however, Landlord shall not be responsible or liable for failure of
any person to observe this rule. Tenant, its employees, agents, guests and/or
invitees shall not park in spaces(s) that may be reserved or designated for
others.
6. Tenant shall not install in the Premises any heavy weight equipment or
fixtures or permit any concentration of excessive weight in any portion thereof
without first having obtained Landlord's discretionary written consent.
7. Landlord reserves the right at all times to exclude newsboys, loiterers,
vendors, solicitors, and peddlers from the Building and to require registration
or satisfactory identification or credentials from all persons seeking access to
any part of the Building outside ordinary business hours. Landlord will exercise
its best judgment in the execution of such control but will not be liable for
the granting or refusal of such access.
8. Landlord reserves the right at all times to exclude the general public from
the Building upon such days and at such hours as in Landlord's sole judgment
will be in the best interest of the Building and its tenants.
9. No wires of any kind or type (including but not limited to T.V. and radio
antennas) shall be attached to the outside of the Building and no wires shall be
run or installed in any part of the Building without Landlord's prior
discretionary written consent.
10. If the Premises are furnished with carpeting, Tenant shall provide a
plexiglass or comparable carpet protection mat for each desk chair customarily
used by Tenant. For default or carelessness in these respects, Tenant shall pay
Landlord the cost of repairing or replacing said carpet, in whole or in part, as
Additional Rent when, in Landlord's sole judgment, such repair or replacement is
necessary.
11. Landlord shall furnish a reasonable number of door keys to Tenant's
Premises and/or the Building which shall be surrendered on termination or
expiration of the Lease. Landlord reserves the right to require a deposit for
such keys to insure their return at the termination or expiration of the Lease.
Tenant shall get keys only from Landlord and shall not obtain duplicate keys
from outside source. Further, Tenant shall not alter the locks or effect any
substitution of such locks as are presently being used in Tenant's Premises or
the Building.
12. Tenant shall keep all doors to Premises closed at all times except for
ingress and egress to the Premises.
13. All installations in the Common Telephone/Electrical Equipment Room shall
be limited to terminal boards and connections. All other electrical equipment
must be installed within Tenant's premises.
14. It is expressly understood and agreed that any items of any nature
whatsoever placed in Common Areas (i.e., hallways, restrooms, elevators, parking
garage, storage areas and equipment rooms) are placed at Tenant's sole risk and
Landlord assumes no responsibility whatsoever for any loss or damages regards
same.
