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EXHIBIT 10.68
COMMERCIAL LEASE AGREEMENT
BETWEEN
10TH STREET BUSINESS PARK, LTD.
AND
@TRACK COMMUNICATIONS, INC.
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TABLE OF CONTENTS
1. PREMISES, TERM, AND INITIAL IMPROVEMENTS.................................................................1
2. BASE RENT, SECURITY DEPOSIT AND ADDITIONAL RENT..........................................................2
3. TAXES....................................................................................................4
4. LANDLORD'S MAINTENANCE...................................................................................4
5. TENANT'S MAINTENANCE AND REPAIR OBLIGATIONS..............................................................5
6. ALTERATIONS..............................................................................................5
7. SIGNS....................................................................................................6
8. UTILITIES................................................................................................6
9. INSURANCE................................................................................................7
10. CASUALTY DAMAGE..........................................................................................7
11. LIABILITY, INDEMNIFICATION, WAIVER OF
SUBROGATION AND NEGLIGENCE......................................................................8
12. USE......................................................................................................9
13. INSPECTION...............................................................................................9
14. ASSIGNMENT AND SUBLETTING...............................................................................10
15. CONDEMNATION............................................................................................11
16. SURRENDER OF PREMISES; HOLDING OVER.....................................................................11
17. QUIET ENJOYMENT.........................................................................................12
18. TENANT'S EVENTS OF DEFAULT..............................................................................12
19. REMEDIES................................................................................................13
20. LANDLORD'S DEFAULT......................................................................................15
21. MORTGAGES...............................................................................................15
22. ENCUMBRANCES............................................................................................16
23. MISCELLANEOUS...........................................................................................16
24. NOTICES.................................................................................................18
25. HAZARDOUS WASTE.........................................................................................19
26. LANDLORD'S CONSENT......................................................................................19
Exhibit "A" Description of Land
Exhibit "B" Construction Agreement
Exhibit "C" Parking Space Designations
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COMMERCIAL LEASE AGREEMENT
This Commercial Lease Agreement (this "LEASE") is entered into by 10th
STREET BUSINESS PARK, LTD., a Texas limited partnership ("LANDLORD"), and @TRACK
COMMUNICATIONS, INC., a Delaware corporation ("TENANT").
1. PREMISES, TERM, AND INITIAL IMPROVEMENTS.
(a) Landlord leases to Tenant, and Tenant leases from
Landlord, Twenty Five Thousand (25,000) square feet of Net Rentable Area
(hereinafter the "PREMISES") located in the approximately 100,000 square foot
building (the "BUILDING") located on the real property described on EXHIBIT "A"
(the "LAND"). The term "NET RENTABLE AREA" refers to the area occupied by office
and/or warehouse space, as calculated within the boundaries defined by (i) the
exterior surface of the exterior walls and windows of the Building, and (ii) the
center line of any demising walls separating the Premises from space to be
occupied by another tenant. The Net Rentable Area in the Premises has been
calculated on the basis of the foregoing definition and is hereby stipulated to
be 25,000 square feet.
(b) The term of this Lease shall be sixty (60) months,
beginning on the Commencement Date (defined below) ("TERM", shall include all
renewals and extensions of the initial Term); however, if the Commencement Date
is not the first day of a calendar month, then the Term shall end sixty (60)
months after the first day of the first full calendar month of the Term. The
"COMMENCEMENT DATE" shall be the date on which Substantial Completion (defined
in EXHIBIT "B") occurs. Following the Commencement Date, Landlord and Tenant
shall execute an instrument specifying the Commencement Date and the expiration
date of the Term.
(c) Provided no Event of Default exists when Tenant delivers
such notice, Tenant may renew this Lease for two additional periods of three (3)
years each on the same terms provided in this Lease, except that the Base Rent
payable for each month shall be fair market rental rate for space of equivalent
size, quality and utility taking into account the credit standing of Tenant (the
"RENEWAL RATE"), Tenant shall have no further renewal options, and Landlord
shall lease to Tenant the Premises in their then current condition, and Landlord
shall not provide to Tenant any allowances (e.g., moving allowance, construction
allowance, and the like) or other tenant inducements. Notwithstanding the
foregoing, the Base Rent for each such renewal period shall in no event be less
than $5.56 per square foot nor more than an amount which equals a twelve percent
(12%) increase over the previous period's Base Rent. Tenant shall deliver
written notice to Landlord indicating whether or not Tenant elects to extend the
Term no later than 150 days prior to the expiration of the Term ("ELECTION
DATE"). Within 30 days after receipt of written request from Tenant, which
written request shall be made no earlier than 180 days and no later than 150
days prior to the expiration of the Term, Landlord shall provide Tenant with the
Renewal Rate. The Renewal Rate shall be determined by Landlord in its sole
discretion, taking into account the factors described herein above.
Notwithstanding anything contained herein to the contrary, if Tenant fails to
deliver written notice indicating whether or not it elects to extend prior to
the Election Date, Tenant shall be deemed to have elected not to extend the
Term. Tenant's rights hereunder shall terminate if (i) this Lease
COMMERCIAL LEASE AGREEMENT PAGE 1 OF 23
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expires or is canceled or because of an Event of Default this Lease or Tenant's
right to possession of the Premises is terminated, or (ii) Tenant fails to
timely exercise its option hereunder, time being of the essence with respect to
Tenant's exercise thereof.
(d) Landlord shall construct the Premises in substantial
accordance with the plans and specifications referenced on EXHIBIT "B", and, by
occupying the Premises, Tenant shall have accepted the Premises in their
condition, subject to the completion of any punch-list items.
2. BASE RENT, SECURITY DEPOSIT AND ADDITIONAL RENT.
(a) Tenant shall pay to Landlord "BASE RENT", in advance,
without demand, deduction or set off, equal to the following amounts for the
following periods of time:
Annual Per
Months in Term Monthly Base Rent Square Foot Base Rent
Month 1 to month 60 $11,583.33 $5.56
The first monthly installment, plus the other monthly charges set forth in
Section 2.(c), shall be due on the date hereof; thereafter, monthly installments
of Base Rent shall be due on the first day of each calendar month following the
Commencement Date. If the Term begins on a day other than the first day of a
month or ends on a day other than the last day of a month, then Base Rent and
additional rent for such partial month shall be prorated.
(b) Tenant shall deposit with Landlord on the date hereof
$11,583.33 (the "SECURITY DEPOSIT"), which shall be held by Landlord to secure
Tenant's obligations under this Lease; however, the Security Deposit is not an
advance rental deposit or a measure of Landlord's damages for an Event of
Default (defined below). Landlord may reasonably use any portion of the Security
Deposit to satisfy Tenant's unperformed obligations hereunder, without prejudice
to any of Landlord's other remedies. If so used, Tenant shall pay Landlord an
amount that will restore the Security Deposit to its original amount upon
request. The Security Deposit shall be Landlord's property. The unused portion
of the Security Deposit will be returned to Tenant within a reasonable time
after the end of the Term, provided that Tenant has fully and timely performed
its obligations pursuant to this Lease throughout the Term.
(c) Tenant shall pay, as additional Rent, its Proportionate
Share (hereinafter defined) of all costs incurred in owning, operating and
maintaining the Land and Building and the facilities and services provided for
the common use of Tenant and any other tenants of the Building (collectively,
"OPERATING EXPENSES"), including the following items: (1) Taxes (defined below)
and the cost of any tax consultant employed to assist Landlord in determining
the fair tax valuation of the Building and Land provided such cost does not
exceed five hundred dollars ($500.00) per building; (2) the cost of all
utilities used in the Building which are not billed separately to a tenant of
the Building for above Building standard utility consumption; (3) the cost of
insurance; (4) the cost of repairs, replacement, management fees (not to exceed
four percent (4%) of the Base Rent in the Project) and expenses, landscape
maintenance and replacement, security service (if provided), sewer service (if
provided), and trash service (if provided); (5) the cost of dues, assessments,
and
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other charges applicable to the Land payable to any property or community owner
association under restrictive covenants or deed restrictions to which the
Premises are subject; and (6) alterations, additions, and improvements made by
Landlord to comply with Law (defined in Section 23(a) below). On the same day
that Base Rent is due, Tenant shall pay to Landlord an amount equal to 1/12 of
Landlord's estimate of Tenant's Proportionate Share of annual Operating
Expenses. The initial monthly payments are based upon Landlord's estimate of the
Operating Expenses for the year in question, and shall be increased or decreased
annually to reflect the projected actual Operating Expenses for that year. If
Tenant's total payments in respect of Operating Expenses for any year are less
than Tenant's Proportionate Share of Operating Expenses for that year, Tenant
shall pay the difference to Landlord within ten days after Landlord's request
therefor; if such payments are more than Tenant's Proportionate Share of
Operating Expenses, Landlord shall retain such excess and credit it against
Tenant's future annual payments. Operating Expenses shall not include the
following: (A) any costs for interest, amortization, or other payments on loans
to Landlord; (B) expenses incurred in leasing or procuring tenants; (C) legal
expenses; (D) allowances, concessions, and other costs of renovating or
otherwise improving space for occupants of the Building or vacant space in the
Building; (E) federal income taxes imposed on or measured by the income of
Landlord from the operation of the Building; (F) rents under ground leases; and
(G) capital replacement items; and (H) costs incurred in selling, syndicating,
financing, mortgaging, or hypothecating any of Landlord's interests in the
building. There shall be no duplication of costs for reimbursements in
calculating Operating Expenses. The amounts of the initial monthly Base Rent and
Tenant's Proportionate Share of Operating Expenses (and the part thereof
attributable to Taxes) are as follows:
Base Rent (Section 2.(a)) $ 11,583.33
Operating Expenses, excluding Taxes(Section 2.(c)) $ 1,083.33
Taxes (Section 2.(c) and 3.(a)) $ 1,520.83
Total initial monthly payment $ 14,187.49
(d) If any payment required of Tenant under this Lease is not
paid when due, Landlord may charge Tenant a fee equal to 5% of the delinquent
payment to reimburse Landlord for its cost and inconvenience incurred as a
consequence of Tenant's delinquency.
(e) All payments and reimbursements required to be made by
Tenant under this Lease shall constitute "RENT" (herein so called).
(f) The term "TENANT'S PROPORTIONATE SHARE" means the ratio
from time to time of the Net Rentable Area of the Premises to the Net Rentable
Area of the project of which the Building is a part ("PROJECT"). The Project has
been initially determined to be comprised of 249,600 square feet of Net Rentable
Area. Tenant's Proportionate Share has been initially determined to be 10%. If
the Net Rentable Area of the Premises, Building or Project changes, Tenant's
Proportionate Share shall change accordingly.
COMMERCIAL LEASE AGREEMENT PAGE 3 OF 23
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3. TAXES.
(a) Landlord shall pay all taxes, assessments and governmental
charges whether federal, state, county, or municipal and whether they are
imposed by taxing or management districts or authorities presently existing or
hereafter created (collectively, "TAXES") that accrue against the Premises, the
Land and the Building. If, during the Term, there is levied, assessed or imposed
on Landlord a capital levy or other tax directly on the Rent or a franchise tax,
assessment, levy or charge measured by or based, in whole or in part, upon Rent,
then all such taxes, assessments, levies or charges, or the part thereof so
measured or based, shall be included within the term "TAXES". If the Building is
occupied by more than one tenant and the cost of any improvements constructed in
the Premises is disproportionately higher than the cost of improvements
constructed in the premises of other tenants of the Building, then Landlord may
require that Tenant pay the amount of Taxes attributable to such improvements in
addition to its Proportionate Share of other Taxes.
(b) Tenant shall, before delinquency, pay all taxes levied or
assessed against any personal property, fixtures or alterations placed in the
Premises. If any such personal property taxes on Tenant's personal property are
levied or assessed against Landlord or Landlord's property and (A) Landlord pays
them or (B) the assessed value of Landlord's property is increased thereby and
Landlord pays the increased taxes, then Tenant shall pay to Landlord such taxes
within ten days after Landlord's request therefor.
4. LANDLORD'S MAINTENANCE.
(a) Landlord's maintenance obligations at Landlord's sole cost
are limited to the repair, maintenance and replacement of the Building's roof
and maintenance of the foundation and structural members of the exterior walls
(collectively, the "BUILDING'S STRUCTURE") and the maintenance of the electrical
systems, plumbing systems, storm drainage and other mechanical systems, and
exterior walls of the Building and underground utility and sewer pipes outside
of the Building, parking areas, driveways, alleys and grounds surrounding the
Premises; however, Landlord shall not be responsible (1) for any such work until
Tenant delivers to Landlord written notice of the need therefor, or (2) for
alterations to the Building's Structure required by Law because of Tenant's use
of the Premises (which alterations shall be performed by Tenant). The Building's
Structure does not include skylights, windows, glass or plate glass, doors,
special store fronts or office entries, all of which shall be maintained by
Tenant. Landlord's liability for any defects, repairs, replacement or
maintenance for which Landlord is responsible hereunder shall be limited to the
cost of performing such work if same are performed on a timely basis. Landlord
shall be responsible for repairing any damages to the Premises caused by leaks
in the roof of the Building. All work performed by Landlord shall provide for
containment of any toxic materials which may be encountered and shall be in
conformance with O.S.H.A. and E.P.A. standards and local building codes and
regulations.
(b) If Tenant defaults on its obligations of maintenance,
repair or replacement, Landlord may perform Tenant's maintenance, repair and
replacement obligations and any other items that are otherwise Tenant's
obligations under Section 5.(b), in which event Tenant shall pay to Landlord any
reasonable and necessary cost incurred by Landlord in performing such
obligations within ten (10) days after Landlord's request therefor.
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5. TENANT'S MAINTENANCE AND REPAIR OBLIGATIONS.
(a) Tenant shall maintain all parts of the Premises (except
for maintenance work which Landlord is expressly responsible for under Section
4.(a)) in good condition and promptly make all necessary repairs and
replacements to the Premises. Tenant shall repair and pay for any damage caused
by a Tenant Party (defined below) or caused by Tenant's default hereunder. All
work performed by Tenant shall provide for a containment of any toxic materials
which may be encountered and shall be in strict conformance with O.S.H.A. and
E.P.A. standards and local building codes and regulations.
(b) Tenant shall maintain the hot water equipment and the
heating, air condition, and ventilation equipment and system (the "HVAC SYSTEM")
in good repair and condition and in accordance with Law and with such equipment
manufacturers' suggested operation/maintenance service program. Within ten (10)
days after the Commencement Date, Tenant shall enter into preventive
maintenance/service contracts for such equipment for the duration of the Term,
each in form and substance and with a contractor reasonably acceptable to
Landlord certifying that the hot water equipment and the HVAC System are then in
good repair and working order. Landlord represents and warrants that, as of the
Commencement Date, the HVAC System will be in good repair and working order.
6. ALTERATIONS. Tenant shall not make any alterations, additions, or
improvements to the Premises without the prior written consent of Landlord.
Landlord shall not be required to notify Tenant of whether it consents to any
alteration, addition or improvements until it (a) has received plans and
specifications therefor which are sufficiently detailed to allow construction of
the work depicted thereon to be performed in a good and workmanlike manner, and
(b) has had a reasonable opportunity to review them. At the time of Landlord's
prior written consent to the alterations, additions or improvements to the
Premises, Landlord will inform Tenant whether said alteration, addition or
improvement will have to be removed by Tenant upon termination of this Lease. If
the alteration, addition or improvements will affect the Building's Structure,
HVAC Systems, or mechanical, electrical, or plumbing systems, then the plans and
specifications therefor must be prepared by a licensed engineer reasonably
acceptable to Landlord. Landlord's approval of any plans and specifications
shall not be a representation that the plans or the work depicted thereon will
comply with Law or be adequate for any purpose, but shall merely be Landlord's
consent to performance of the work. Upon completion of any alteration, addition,
or improvement, Tenant shall deliver to Landlord accurate, reproducible as-built
plans therefor. Tenant may erect shelves, bins, machinery and trade fixtures
provided that such items (1) do not alter the basic character of the Premises or
the Building; (2) do not overload or damage the same; and (3) may be removed
without damage to the Premises. Unless Landlord specifies in writing otherwise,
all alterations, additions, and improvements shall be Landlord's property when
installed in the Premises. All work performed by a Tenant Party in the Premises
(including that relating to the installations, repair, replacement, or removal
of any item) shall be performed in accordance with law and with Landlord's
specifications and requirements, in a good and workmanlike manner, and so as not
to damage or alter the Building's Structure or the Premises. Tenant shall be
responsible for any
COMMERCIAL LEASE AGREEMENT PAGE 5 OF 23
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reasonable fees Landlord accrues to have any plans or specifications reviewed by
a professional architect or engineer.
7. SIGNS. Tenant shall not place, install or attach any signage,
decorations, advertising, media, blinds, draperies, window treatments, bars, or
security installations to the Premises or the Building without Landlord's prior
written approval. Tenant shall repair, paint, and/or replace any portion of the
Premises or the Building damaged or altered as a result of its signage when it
is removed (including, without limitation, any discoloration of the Building).
Tenant shall not (a) make any changes to the exterior of the Premises or the
Building, (b) install any exterior lights, decorations, balloons, flags,
pennants, banners or paintings; or (c) erect or install any signs, windows or
door lettering, decals, window or storefront stickers, placards, decorations or
advertising media of any type that is visible from the exterior of the Premises
without Landlord's prior written consent. Landlord shall not be required to
notify Tenant of whether it consents to any sign until it (1) has received
detailed, to-scale drawings thereof specifying design, material composition,
color scheme, and method of installation, and (2) has had a reasonable
opportunity to review them.
8. UTILITIES. Tenant shall obtain and pay for all water, gas,
electricity, heat, telephone, sewer, sprinkler charges and other utilities and
services used at the Premises, together with any taxes, penalties, surcharges,
maintenance charges, and the like pertaining to the Tenant's use of the
Premises. Landlord shall separately meter and xxxx Tenant directly for its use
of any such utility service, in which case, the amount separately billed to
Tenant for Building-standard utility service shall not be duplicated in Tenant's
obligation to pay additional Rent under Section 2.(c). Landlord shall not be
liable for any interruption of failure of utility service to the Premises unless
caused by Landlord's gross negligence. All amounts due from Tenant under this
Section 8 shall be payable within ten days after Landlord's request therefor.
9. INSURANCE. Tenant shall maintain (a) workers' compensation insurance
(with a waiver of subrogation endorsement reasonably acceptable to Landlord) and
commercial general liability insurance (with contractual liability endorsement),
including personal injury and property damage in the amount of $1,000,000 per
occurrence combined single limit for personal injuries and death of persons and
property damage occurring in or about the Premises, plus umbrella coverage of at
least $2,000,000 per occurrence, (b) fire and extended coverage insurance
covering (1) the replacement cost of all alterations, additions, partitions and
improvements installed in the Premises by or on behalf of a Tenant Party, (2)
the replacement cost of all of Tenant's personal property in the Premises, and
(3) loss of profits in the event of an insured peril damaging the Premises, and
(c) such other insurance as Landlord may reasonably require. Such policies shall
(A) name Landlord, Landlord's agents, and their respective Affiliates (defined
below), as additional insureds (and as loss payees on fire and extended coverage
insurance), (B) be issued by an insurance company acceptable to Landlord, (C)
provide that such insurance may not be canceled unless 30-days' prior written
notice is first given to Landlord, (D) be delivered to Landlord by Tenant before
the Commencement Date and at least 30 days before each renewal thereof, and (E)
provide primary coverage to Landlord when any policy issued to Landlord is
similar or duplicate in coverage, in which case Landlord's policy shall be
excess over Tenant's policies.
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10. CASUALTY DAMAGE.
(a) Tenant immediately shall give written notice to Landlord
of any damage to the Premises or the Building. If the Premises or the Building
are totally destroyed by an insured peril, or so damaged by an insured peril
that, in Landlord's estimation, rebuilding or repairs cannot be substantially
completed within 180 days after the date of Landlord's actual knowledge of such
damage, then either Landlord or (if a Tenant Party did not cause such damage)
Tenant may terminate this Lease by delivering to the other written notice
thereof within 30 days after such damage, in which case, Tenant shall be
released from all future obligations in this Lease to pay Rent for the number of
months remaining in the Term of this Lease as of the effective date of the
termination notice. Time is of the essence with respect to the delivery of such
notices.
(b) Subject to Section 10.(c), if this Lease is not terminated
under Section 10.(a), then Landlord shall restore the Premises to substantially
its previous condition, except that Landlord shall not be required to rebuild,
repair or replace any part of the partitions, fixtures, additions and other
improvements or personal property required to be covered by Tenant's insurance
under Section 9. If the Premises are untenantable, in whole or in part, during
the period beginning on the date such damage occurred and ending on the date of
substantial completion of Landlord's repair or restoration work (the "REPAIR
PERIOD"), then the rent for such period shall be reduced to such extent as may
be fair and reasonable under the circumstances and the Term shall be extended by
the number of days in the Repair Period.
(c) If the Premises are destroyed or substantially damaged by
any peril not covered by the insurance maintained by Landlord, or any Landlord's
Mortgagee (defined below) requires that insurance proceeds be applied to the
indebtedness secured by its Mortgage (defined below) or to the Primary Lease
(defined below) obligations, Landlord may terminate this Lease by delivering
written notice of termination to Tenant within 30 days after such destruction or
damage or such requirement is made known by any such Landlord's Mortgagee, as
applicable, whereupon all rights and obligations hereunder shall cease and
terminate, except for any liabilities of Tenant which accrued before this Lease
is terminated.
11. LIABILITY, INDEMNIFICATION, WAIVER OF SUBROGATION AND NEGLIGENCE.
(a) SUBJECT TO SECTION 11.(B), TENANT SHALL INDEMNIFY, DEFEND,
AND HOLD HARMLESS LANDLORD, ITS SUCCESSORS, ASSIGNS, AGENTS, EMPLOYEES,
CONTRACTORS, PARTNERS, DIRECTORS, OFFICERS AND AFFILIATES (COLLECTIVELY, THE
"INDEMNIFIED PARTIES") FROM AND AGAINST ALL FINES, SUITS, LOSSES, COSTS,
LIABILITIES, CLAIMS, DEMANDS, ACTIONS AND JUDGMENTS OF EVERY KIND OR CHARACTER
(1) ARISING FROM TENANT'S FAILURE TO PERFORM ITS COVENANTS HEREUNDER, (2)
RECOVERED FROM OR ASSERTED AGAINST ANY OF THE INDEMNIFIED PARTIES ON ACCOUNT OF
ANY LOSS (DEFINED BELOW) TO THE EXTENT THAT ANY SUCH LOSS MAY BE INCIDENT TO,
ARISE OUT OF, OR BE CAUSED, EITHER PROXIMATELY OR REMOTELY, WHOLLY OR IN PART,
BY A TENANT PARTY OR ANY OTHER PERSON ENTERING UPON THE PREMISES UNDER OR WITH A
TENANT PARTY'S EXPRESS OR IMPLIED INVITATION OR PERMISSION, (3) ARISING FROM OR
OUT OF THE OCCUPANCY OR USE BY A TENANT PARTY OR ARISING FROM
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OR OUT OF ANY OCCURRENCE IN THE PREMISES, HOWSOEVER CAUSED, OR (4) SUFFERED BY,
RECOVERED FROM OR ASSERTED AGAINST ANY OF THE INDEMNIFIED PARTIES BY THE
EMPLOYEES, AGENTS, CONTRACTORS, OR INVITEES OF TENANT OR ITS SUBTENANTS OR
ASSIGNEES, REGARDLESS OF WHETHER LANDLORD'S NEGLIGENCE CAUSED SUCH LOSS OR
DAMAGE. HOWEVER, SUCH INDEMNIFICATION OF THE INDEMNIFIED PARTIES BY TENANT SHALL
NOT BE APPLICABLE IF SUCH LOSS, DAMAGE, OR INJURY IS CAUSED BY THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF LANDLORD OR ANY OF ITS DULY AUTHORIZED
AGENTS OR EMPLOYEES.
(b) LANDLORD SHALL NOT BE LIABLE TO TENANT OR THOSE CLAIMING
BY, THROUGH, OR UNDER TENANT FOR ANY INJURY TO OR DEATH OF ANY PERSON OR PERSONS
OR THE DAMAGE TO OR THEFT, DESTRUCTION, LOSS, OR LOSS OF USE OF ANY PROPERTY OR
INCONVENIENCE (A "LOSS") CAUSED BY CASUALTY, THEFT, FIRE, THIRD PARTIES, OR ANY
OTHER MATTER (INCLUDING LOSSES ARISING THROUGH REPAIR OR ALTERATION OF ANY PART
OF THE BUILDING, OR FAILURE TO MAKE REPAIRS, OR FROM ANY OTHER CAUSE),
REGARDLESS OF WHETHER THE NEGLIGENCE OF EITHER PARTY CAUSED SUCH LOSS IN WHOLE
OR IN PART. LANDLORD AND TENANT EACH WAIVES ANY CLAIM IT MIGHT HAVE AGAINST THE
OTHER FOR ANY DAMAGE TO OR THEFT, DESTRUCTION, LOSS, OR LOSS OF USE OF ANY
PROPERTY, TO THE EXTENT THE SAME IS INSURED AGAINST UNDER ANY INSURANCE POLICY
MAINTAINED BY IT THAT COVERS THE BUILDING, THE PREMISES, LANDLORD'S OR TENANT'S
FIXTURES, PERSONAL PROPERTY, LEASEHOLD IMPROVEMENTS, OR BUSINESS, OR IS REQUIRED
TO BE INSURED AGAINST BY THE WAIVING PARTY UNDER THE TERMS HEREOF, REGARDLESS OF
WHETHER THE NEGLIGENCE OR FAULT OF THE OTHER PARTY CAUSED SUCH LOSS; HOWEVER,
LANDLORD'S WAIVER SHALL NOT APPLY TO ANY DEDUCTIBLE AMOUNTS MAINTAINED BY
LANDLORD UNDER ITS INSURANCE. EACH PARTY SHALL CAUSE ITS INSURANCE CARRIER TO
ENDORSE ALL APPLICABLE POLICIES WAIVING THE CARRIER'S RIGHTS OF RECOVERY UNDER
SUBROGATION OR OTHERWISE AGAINST THE OTHER PARTY.
12. USE.
(a) The Premises shall be used only for receiving, storing
(including all of Tenant's battery products stored in accordance with applicable
law), light assembly, packing, testing, servicing, shipping and selling
products, materials and merchandise made or distributed by Tenant and for such
other lawful purposes as may be incidental thereto; however, no retail sales may
be made from the Premises. Tenant shall not use the Premises to receive, store
or handle any product, material or merchandise that is explosive or highly
inflammable or hazardous. Outside storage is prohibited. Tenant shall be solely
responsible for complying with all Laws applicable to the use, occupancy, and
condition of the Premises. Tenant shall not permit any objectionable or
unpleasant odors, smoke, dust, gas, light, noise or vibrations to emanate from
the Premises; nor take any other action that would constitute a nuisance or
would disturb, unreasonably interfere with, or endanger Landlord or any other
person; nor permit the Premises to be used for any purpose or in any manner
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that would (1) void the insurance thereto, (2) increase the insurance risk, or
(3) cause the disallowance of any sprinkler credits. Tenant shall pay to
Landlord on demand any increase in the cost of any insurance on the Premises or
the Building incurred by Landlord which is caused by Tenant's use of the
Premises or because Tenant vacates the Premises.
(b) Tenant and its employees and invitees shall have the
non-exclusive right to use, in common with others, any parking areas associated
with the Premises which Landlord has designated for such use, subject to (1)
such reasonable rules and regulations as Landlord may promulgate from time to
time and (2) rights of ingress and egress of other tenants and their employees,
agents and invitees. Notwithstanding the above, Tenant shall receive 30 parking
places as a covenant of this Lease and Landlord shall designate the parking
spaces set forth on EXHIBIT "C" attached hereto for the exclusive use of Tenant.
Landlord shall not be responsible for enforcing Tenant's parking rights against
third parties.
13. INSPECTION. Landlord and Landlord's agents and representatives may
enter the Premises during normal business hours with prior notice to: inspect
the Premises; to make such repairs as may be required or permitted under this
Lease; to perform any unperformed obligations of Tenant hereunder; and to show
the Premises to prospective purchasers, mortgagees, ground lessors, and (during
the last 12 months of the Term) tenants. During the last 12 months of the Term,
Landlord may erect a sign on the Premises indicating that the Premises are
available. Tenant shall notify Landlord in writing of its intention to vacate
the Premises at least sixty (60) days before Tenant will vacate the Premises;
such notice shall specify the date on which Tenant intends to vacate the
Premises (the "VACATION DATE"). At least thirty (30) days before the Vacation
Date, Tenant shall arrange to meet with Landlord for a joint inspection of the
Premises. After such inspection, Landlord shall prepare a list of items that
Tenant must perform before the Vacation Date. If Tenant fails to arrange for
such inspection, then Landlord may conduct such inspection and Landlord's
determination of the work Tenant is required to perform before the Vacation Date
shall be conclusive. If Tenant fails to perform such work before the Vacation
Date, then Landlord may perform such work at Tenant's cost. Tenant shall pay all
costs incurred by Landlord in performing such work within ten (10) days after
Landlord's request therefor.
14. ASSIGNMENT AND SUBLETTING.
(a) Tenant shall not, without the prior written consent of
Landlord, which consent shall not be unreasonably held or delayed, (1) advertise
that any portion of the Premises is available for lease or cause or allow any
such advertisement, (2) assign, transfer, or encumber this Lease or any estate
or interest herein, whether directly or by operation of law, (3) permit any
other entity to become Tenant hereunder by merger, consolidation, or other
reorganization, (4) if Tenant is an entity other than a corporation whose stock
is publicly traded, permit the transfer of an ownership interest in Tenant so as
to result in a change in the current control of Tenant, (5) sublet any portion
of the Premises, (6) grant any license, concession, or other right of occupancy
of any portion of the Premises, or (7) permit the use of the Premises by any
parties other than Tenant (any of the events listed in Sections 14.(a)(2)
through 14.(a)(7) being a "TRANSFER"). If Tenant requests Landlord's consent to
a Transfer, then Tenant shall provide Landlord with a written description of all
terms and conditions of the proposed Transfer, copies of the proposed
documentation, and the following
COMMERCIAL LEASE AGREEMENT PAGE 9 OF 23
12
information about the proposed transferee: name and address; reasonably
satisfactory information about its business and business history; its proposed
use of the Premises; banking, financial, and other credit information; and
general references sufficient to enable Landlord to determine the proposed
transferee's creditworthiness and character. Tenant shall reimburse Landlord for
its reasonable attorneys' fees and other expenses incurred in connection with
considering any request for its consent to a Transfer. If Landlord consents to a
proposed Transfer, then the proposed transferee shall deliver to Landlord a
written agreement whereby it expressly assumes the Tenant's obligations
hereunder (however, any transferee of less than all of the space in the Premises
shall be liable only for obligations under this Lease that are properly
allocable to the space subject to the Transfer, and only to the extent of the
Rent it has agreed to pay Tenant therefor). Landlord's consent to a Transfer
shall not release Tenant from performing its obligations under this Lease unless
otherwise mutually agreed to at the time of the Transfer, but rather Tenant and
its transferee shall be jointly and severally liable therefor. Landlord's
consent to any Transfer shall not waive Landlord's rights as to any subsequent
Transfers. If an Event of Default occurs while the Premises or any part thereof
are subject to a Transfer, then Landlord, in addition to its other remedies, may
collect directly from such transferee all Rents becoming due to Tenant and apply
such Rents against Tenant's Rent obligations. Tenant authorizes its transferees
to make payments of Rent directly to Landlord upon receipt of notice from
Landlord to do so.
(b) Tenant hereby assigns, transfers and conveys all
consideration received by Tenant under any Transfer, net of expenses directly
related thereto (which may include commissions, broker costs, tenant
improvements, and marketing expenses), which are in excess of the rents payable
by Tenant under this Lease, and Tenant shall hold such amounts in trust for
Landlord and pay them to Landlord within ten (10) days after receipt.
15. CONDEMNATION. If more than 50% of the Premises is taken for any
public or quasi-public use by right of eminent domain or private purchase in
lieu thereof (a "TAKING"), and the Taking prevents or materially interferes with
the use of the remainder of the Premises for the purpose for which they were
leased to Tenant, either party may terminate this Lease by delivering to the
other written notice thereof within thirty (30) days after the Taking, in which
case Tenant shall be released from all future obligations in this Lease to pay
Rent for the number of months remaining in the Term of this Lease as of the
effective date of such Taking. If (a) less than 50% of the Premises are subject
to a Taking or (b) more than 50% of the Premises are subject to a Taking, but
the Taking does not prevent or materially interfere with the use of the
remainder of the Premises for the purpose for which they were leased to Tenant,
then neither party may terminate this Lease, but the rent payable during the
unexpired portion of the Term shall be reduced to such extent as may be fair and
reasonable under the circumstances. All compensation awarded for any Taking
shall be the property of Landlord and Tenant assigns any interest it may have in
any such award to Landlord; however, Landlord shall have no interest in any
award made to Tenant for loss of business or goodwill or for the taking of
Tenant's trade fixtures, if a separate award for such items is made to Tenant.
16. SURRENDER OF PREMISES; HOLDING OVER.
(a) No act by Landlord shall be an acceptance of a surrender
of the Premises, and no agreement to accept a surrender of the Premises shall be
valid unless it is in writing and signed
COMMERCIAL LEASE AGREEMENT PAGE 10 OF 23
13
by Landlord. At the end of the Term or the termination of Tenant's right to
possess the Premises, Tenant shall (1) deliver to Landlord the Premises with all
improvements located thereon in good repair and condition, reasonable wear and
tear (subject however to Tenant's maintenance obligations) excepted, and with
the HVAC System and hot water equipment, light and light fixtures (including
ballasts), and overhead doors and related equipment in good working order, (2)
deliver to Landlord all keys to the Premises, and (3) remove all signage placed
on the Premises, the Building, or the Land by or at Tenant's request. All
fixtures, alterations, additions, and improvements (whether temporary or
permanent) shall be Landlord's property and shall remain on the Premises except
as provided in the next two sentences. Provided that Tenant has performed all of
its obligations hereunder, Tenant may remove all unattached trade fixtures,
furniture, and personal property placed in the Premises by Tenant (but Tenant
shall not remove any such item which was paid for, in whole or in party, by
Landlord). Additionally, subject to Tenant's receipt of notice pursuant to
Section 6 of this Agreement, Tenant shall remove such alterations, additions,
improvements, fixtures, equipment, wiring, furniture, and other property as
Landlord may request, provided such request is made within one (1) month before
the end of the Term. All items not so removed shall, at the option of Landlord,
be deemed abandoned by Tenant and may be appropriated, sold, stored, destroyed,
or otherwise disposed of by Landlord without notice to Tenant and without any
obligation to account for such items and Tenant shall pay for the costs incurred
by Landlord in connection therewith. Any such disposition shall not be
considered a strict foreclosure or other exercise of Landlord's rights in
respect of the security interest granted under Section 26. All work required of
Tenant under this Section 16.(a) shall be coordinated with Landlord and be done
in a good and workmanlike manner, in accordance with all Laws, and so as not to
damage the Building or unreasonably interfere with other tenants' use of their
premises. Tenant shall, at its expense, repair all damage caused by any work
performed by Tenant under this Section 16.(a).
(b) If Tenant fails to vacate the Premises at the end of the
Term, then Tenant shall be a Tenant at will and Tenant shall pay, in addition to
the other Rent due hereunder, a daily base rental equal to 150% of the daily
Base Rent payable during the last month of the Term. Additionally, Tenant shall
defend, indemnify, and hold harmless Landlord from any damage, liability and
expense (including attorneys' fees and expenses) incurred because of such
holding over. No payments of money by Tenant to Landlord after the Term shall
reinstate, continue or extend the Term, and no extension of this Term shall be
valid unless it is in writing and signed by Landlord and Tenant.
17. QUIET ENJOYMENT. Provided Tenant has fully performed its
obligations under this Lease, Tenant shall peaceably and quietly hold and enjoy
the Premises for the Term, without hindrance from Landlord or any party claiming
by, through, or under Landlord, but not otherwise.
18. TENANT'S EVENTS OF DEFAULT.
Each of the following events shall constitute an "EVENT OF
DEFAULT" under this Lease:
(a) Tenant fails to pay any Rent when due or any payment or
reimbursement required under any other lease with Landlord when due, and in
either case such failure continues for a period of five (5) days from the date
such payment was due, provided, however, that the first two
COMMERCIAL LEASE AGREEMENT PAGE 11 OF 23
14
(2) times in any twelve (12) month period that such a default shall occur, the
aforementioned five (5) day period shall begin upon the giving of written notice
by Landlord to Tenant.
(b) The filing of a petition by or against Tenant or any
guarantor of Tenant's obligations hereunder (1) in any bankruptcy or other
insolvency proceeding; (2) seeking any relief under any debtor relief Law; (3)
for the appointment of a liquidator, receiver, trustee, custodian, or similar
official for all or substantially all of Tenant's property or for Tenant's
interest in this Lease; or (4) for reorganization or modification of Tenant's
capital structure (however, if any such petition is filed against Tenant, then
the filing of such petition shall not constitute an Event of Default, unless it
is not dismissed within ninety (90) days after the filing thereof).
(c) Tenant (1) abandons the Premises or (2) fails to
continuously operate its business from the Premises and maintain the Premises as
required by this Agreement.
(d) Tenant fails to discharge any lien placed upon the
Premises in violation of Section 22 within ten (10) days after Tenant discovers
or is notified that any such lien or encumbrance is filed against the Premises.
(e) Tenant fails to comply with any term, provision or
covenant of this Lease (other than those listed in this Section 18), and such
failure continues for twenty (20) days after written notice thereof to Tenant.
19. REMEDIES.
(a) Upon any Event of Default, Landlord may, in addition to
all other rights and remedies afforded Landlord hereunder or by Law, take any of
the following actions:
(1) Terminate this Lease by giving Tenant written
notice thereof, in which event, Tenant shall pay to Landlord the sum
of (A) all rent accrued hereunder through the date of termination,
(B) all amounts due under Section 19.(b), and (C) an amount equal to
(i) the total rent that Tenant would have been required to pay for
the remainder of the Term discounted to Present value at a per annum
rate equal to the "PRIME RATE" as published on the date this Lease
is terminated by The Wall Street Journal, Southwest Edition, in its
listing of "MONEY RATES", minus (ii) the then present fair rental
value of the Premises for such period, similarly discounted; or
(2) Terminate Tenant's right to possess the Premises
without terminating this Lease by giving written notice thereof to
Tenant, in which event Tenant shall pay to Landlord (A) all rent and
other amounts accrued hereunder to the date of termination of
possession, (B) all amounts due from time to time under Section
19.(b), and (C) all rent and other sums required hereunder to be
paid by Tenant during the remainder of the Term, diminished by any
net sums thereafter received by Landlord through reletting the
Premises during such period; however, Landlord shall not be
obligated to relet the Premises and shall not be liable for, nor
shall Tenant's obligations hereunder be diminished because of,
Landlord's failure to relet the Premises or to collect rent due for
a reletting. Tenant shall
COMMERCIAL LEASE AGREEMENT PAGE 12 OF 23
15
not be entitled to the excess of any consideration obtained by
reletting over the rent due hereunder. Reentry by Landlord in the
Premises shall not affect Tenant's obligations hereunder for the
unexpired Term; rather, Landlord may, from time to time, bring
action against Tenant to collect amounts due by Tenant, without the
necessity of Landlord's waiting until the expiration of the Term.
Unless Landlord delivers written notice to Tenant expressly stating
that it has elected to terminate this Lease, all actions taken by
Landlord to exclude or dispossess Tenant of the Premises shall be
deemed to be taken under this Section 19.(a)(2). If Landlord elects
to proceed under this Section 19.(a)(2), it may at any time elect to
terminate this Lease under Section 19.(a)(1).
Additionally, without notice, Landlord may alter locks or other security devices
at the Premises to deprive Tenant of access thereto, and Landlord shall not be
required to provide a new key or right of access to Tenant.
(b) Tenant shall pay to Landlord all reasonable costs incurred
by Landlord (including court costs and reasonable attorneys' fees and expenses)
in (1) obtaining possession of the Premises, (2) removing and storing Tenant's
or any other occupant's property, (3) repairing, restoring, altering,
remodeling, or otherwise putting the Premises into condition acceptable to a new
tenant, (4) if Tenant is dispossessed of the Premises and this Lease is not
terminated, reletting all or any part of the Premises (including brokerage
commissions, cost of tenant finish work, and other costs incidental to such
reletting), (5) performing Tenant's obligations which Tenant failed to perform,
and (6) enforcing, or advising Landlord of, its rights, remedies, and recourses.
Landlord's acceptance of Rent following an Event of Default shall not waive
Landlord's rights regarding such Event of Default. Landlord's receipt of Rent
with knowledge of any default by Tenant hereunder shall not be a waiver of such
default, and no waiver by Landlord of any provision of this Lease shall be
deemed to have been made unless set forth in writing and signed by Landlord. No
waiver by Landlord of any violation or breach of any of the terms contained
herein shall waive Landlord's rights regarding any future violation of such term
or violation of any other term. If Landlord repossesses the Premises pursuant to
the authority herein granted, then Landlord shall have the right to (A) keep in
place and use or (B) remove and store, at Tenant's expense, all of the
furniture, fixtures, equipment and other property in the Premises, including
that which is owned by or leased to Tenant at all times before any foreclosure
thereon by Landlord or repossession thereof by any lessor thereof or third party
having a lien thereon. Landlord may relinquish possession of all or any portion
of such furniture, fixtures, equipment and other property to any person (a
"CLAIMANT") who presents to Landlord a copy of any instrument represented by
Claimant to have been executed by Tenant (or any predecessor of Tenant) granting
Claimant the right under various circumstances to take possession of such
furniture, fixtures, equipment or other property, without the necessity on the
part of Landlord to inquire into the authenticity or legality of the instrument.
Landlord may, at its option and without prejudice to or waiver of any rights it
may have, (i) escort Tenant to the Premises to retrieve any personal belongings
of Tenant and/or its employees not covered by the Landlord's statutory lien or
the security interest described in Section 26 or (ii) obtain a list from Tenant
of the personal property of Tenant and/or its employees that is not covered by
the Landlord's statutory lien or the security interest described in Section 26,
and make such property available to Tenant and/or Tenant's employees; however,
Tenant first shall pay in cash all costs and estimated expenses to be incurred
in connection with the removal of such property and making it available. The
rights of
COMMERCIAL LEASE AGREEMENT PAGE 13 OF 23
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Landlord herein stated are in addition to any and all other rights that Landlord
has or may hereafter have at law or in equity, and Tenant agrees that the rights
herein granted Landlord are commercially reasonable.
20. LANDLORD'S DEFAULT. If Landlord materially defaults in its
performance of its obligations under this Lease, and fails to cure such material
default within thirty (30) days after receiving written notice from Tenant
specifying the material default, Tenant's exclusive remedy shall be an action
for damages. Additionally, if the Landlord materially defaults in its
obligations under paragraph 4 "LANDLORD'S MAINTENANCE" and fails to cure such
material default within thirty (30) days after receiving written notice from
Tenant specifying the material default, Tenant shall have the right to cure such
default and then seek reimbursement from Landlord for any actual, out-of-pocket
expenses incurred to cure such default. In addition, in the event that any
default of this Lease requires more than thirty (30) days to cure by Landlord,
Tenant shall not be permitted to exercise any of its rights hereunder so long as
Landlord is using reasonable diligence to cure the specified default. Unless
Landlord fails to so cure any default after notice, Tenant shall not have any
remedy or cause of action by reason thereof. Notwithstanding any thing herein to
the contrary, the liability of Landlord to Tenant for any default by Landlord,
shall be limited to actual, direct, but not consequential, damages therefor and
shall be recoverable only from the interest of Landlord in the Building and the
Land, and neither Landlord nor Landlord's owners shall have any personal
liability therefor.
21. MORTGAGES.
(a) This Lease shall be subordinate to any deed of trust,
mortgage or other security instrument (a "MORTGAGE"), and any ground lease,
master lease, or primary lease (a "PRIMARY LEASE") that now or hereafter covers
any portion of the Premises (the mortgagee under any Mortgage or the lessor
under any Primary Lease is referred to herein as "LANDLORD'S MORTGAGEE"), and to
increases, renewals, modifications, consolidations, replacements, and extensions
thereof. However, any Landlord's Mortgagee may elect to subordinate its Mortgage
or Primary Lease (as the case may be) to this Lease by delivering written notice
thereof to Tenant. The provisions of this Section 21 shall be self-operative,
and no further instrument shall be required to effect such subordination;
however, Tenant shall from time to time within ten (10) days after request
therefor, execute any instruments that may be required by any Landlord's
Mortgagee to evidence the subordination of this Lease to any such Mortgage or
Primary Lease. If Tenant fails to execute the same within such ten-day period,
Landlord may execute the same as attorney-in-fact for Tenant.
(b) Tenant shall attorn to any party succeeding to Landlord's
interest in the Premises, whether by purchase, foreclosure, deed in lieu of
foreclosure, power of sale, termination of lease, or otherwise, upon such
party's request, and shall execute such agreements confirming such attornment as
such party may reasonably request. Tenant shall not seek to enforce any remedy
it may have for any default on the part of Landlord without first giving written
notice by certified mail, return receipt requested, specifying the default in
reasonable detail to any Landlord's Mortgagee whose address has been given to
Tenant, and affording such Landlord's Mortgagee a reasonable opportunity to
perform Landlord's obligations hereunder.
COMMERCIAL LEASE AGREEMENT PAGE 14 OF 23
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(c) Notwithstanding any such attornment or subordination of a
Mortgage or Primary Lease to this Lease, the Landlord's Mortgagee shall not be
liable for any acts of any previous Landlord, shall not be obligated to install
the Initial Improvements, and shall not be bound by any amendment to which it
did not consent in writing nor any payment of rent made more than one month in
advance.
22. ENCUMBRANCES. Tenant has no authority, express or implied, to
create or place any lien or encumbrance of any kind or nature whatsoever upon,
or in any manner to bind Landlord's property or the interest of Landlord or
Tenant in the Premises or to charge the rent for any claim in favor of any
person dealing with Tenant, including those who may furnish materials or perform
labor for any construction or repairs. Tenant shall pay or cause to be paid all
sums due for any labor performed or materials furnished in connection with any
work performed on the Premises by or at the request of Tenant. Tenant shall give
Landlord immediate written notice of the placing of any lien or encumbrance
against the Premises.
23. MISCELLANEOUS.
(a) Words of any gender used in this Lease shall include any
other gender, and words in the singular shall include the plural, unless the
context otherwise requires. The captions inserted in this Lease are for
convenience only and in no way affect the interpretation of this Lease. The
following terms shall have the following meanings: "LAWS" shall mean all
federal, state, and local laws, rules, and regulations; all court orders,
governmental directives, and governmental orders; and all restrictive covenants
affective the Property, and "LAW" shall mean any of the foregoing; "AFFILIATE"
shall mean any person or entity which, directly or indirectly, controls, is
controlled by, or is under common control with the party in question; and
"TENANT PARTY" shall include Tenant, any assignees claiming by, through, or
under Tenant, any subtenants claiming by, through, or under Tenant, and any of
their respective agents, contractors, employees, and invitees.
(b) Landlord may transfer and assign, in whole or in part, its
rights and obligations in the Building and property that are the subject of this
Lease, in which case Landlord shall have no further liability hereunder. Each
party shall furnish to the other, promptly upon demand, a corporate resolution,
proof of due authorization by partners, or other appropriate documentation
evidencing the due authorization of such party to enter into this Lease.
(c) Whenever a period of time is herein prescribed for action
to be taken by either party hereto (except for payment of Rent by Tenant, such
party 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, war, governmental laws,
regulations, or restrictions, or any other causes of any kind whatsoever which
are beyond the control of such party.
(d) Tenant shall, from time to time, within ten (10) days
after request of Landlord, deliver to Landlord, or Landlord's designee, a
certificate of occupancy for the Premises, financial statements for itself and
any guarantor of its obligations hereunder, evidence reasonably satisfactory to
Landlord that Tenant has performed its obligations under this Lease (including
evidence of the payment of the Security Deposit), and an estoppel certificate
stating that this Lease is in full effect,
COMMERCIAL LEASE AGREEMENT PAGE 15 OF 23
18
the date to which Rent has been paid, the unexpired Term and such other factual
matters pertaining to this Lease as may be requested by Landlord. Tenant's
obligation to furnish the above-described items in a timely fashion is a
material inducement for Landlord's execution of this Lease. If Tenant fails to
execute any such estoppel certificate with such ten (10) day period Landlord may
do so as the attorney in fact of Tenant so long as the items set forth therein
are true and accurate.
(e) This Lease constitutes the entire agreement of the
Landlord and Tenant with respect to the subject matter of this Lease, and
contains all of the covenants and agreements of Landlord and Tenant with respect
thereto. Landlord and Tenant each acknowledge that no representations,
inducements, promises or agreements, oral or written, have been made by Landlord
or Tenant, or anyone acting on behalf of Landlord or Tenant, which are not
contained herein, and any prior agreements, promises, negotiations, or
representations not expressly set forth in this Lease are of no effect. This
Lease may not be altered, changed or amended except by an instrument in writing
signed by both parties hereto.
(f) All obligations of Tenant hereunder not fully performed by
the end of the Term shall survive, including, without limitation, all payment
obligations with respect to Taxes and insurance and all obligations concerning
the condition and repair of the Premises. Upon the end of the Term and before
Tenant vacates the Premises, Tenant shall pay to Landlord any amount reasonably
estimated by Landlord as necessary to put the Premises in good condition and
repair, reasonable wear and tear (subject however to Tenant's maintenance
obligations) excluded. Tenant shall also, prior to vacating the Premises, pay to
Landlord the amount, as estimated by Landlord, of Tenant's obligation hereunder
for Operating Expenses for the year in which the Term ends. All such amounts
shall be used and held by Landlord for payment of such obligations of Tenant
hereunder, with Tenant being liable for any additional costs therefor upon
demand by Landlord or with any excess to be returned to Tenant after all such
obligations have been determined and satisfied as the case may be. Any Security
Deposit held by Landlord may be credited against the amount due by Tenant under
this Section 23.(f).
(g) If any provision of this Lease is illegal, invalid or
unenforceable, then the remainder of this Lease shall not be affected thereby,
and in lieu of each such provision, there shall be added, as a part of this
Lease, a provision as similar in terms to such illegal, invalid or unenforceable
clause or provision as may be possible and be legal, valid and enforceable.
(h) All references in this Lease to "THE DATE HEREOF" or
similar references shall be deemed to refer to the last date, in point of time,
on which all parties hereto have executed this Lease.
(i) Landlord and Tenant each warrant to the other that it has
not dealt with any broker or agent in connection with this Lease other than
Xxxxxxx and Xxxxxxxxx and Xxxx V Commercial Real Estate. Tenant and Landlord
shall each indemnify the other against all costs, attorneys' fees, and other
liabilities for commissions or other compensation claimed by any broker or agent
claiming the same by, through, or under the indemnifying party.
(j) If and when included within the term "TENANT", as used in
this instrument,
COMMERCIAL LEASE AGREEMENT PAGE 16 OF 23
19
there is more than one person, firm or corporation, all shall jointly arrange
among themselves for their joint execution of a notice specifying an individual
at a specific address within the continental United States for the receipt of
notices and payments to Tenant. All parties included within the terms "LANDLORD"
and "TENANT", respectively, shall be bound by notices given in accordance with
the provisions of Section 24 to the same effect as if each had received such
notice.
(k) The terms and conditions of this Lease are confidential
and Tenant shall not disclose the terms of this Lease to any third party except
as may be required by law or to enforce its rights hereunder.
(l) Tenant shall pay interest on all past-due Rent from the
date due until paid at the maximum lawful rate. In no event, however, shall the
charges permitted under this Section 23.(l) or elsewhere in this Lease, to the
extent they are considered to be interest under applicable Law, exceed the
maximum lawful rate of interest.
24. NOTICES.
Each provision of this instrument or any of applicable Laws and other
requirements with reference to the sending, mailing or delivering of notice or
the making of any payment hereunder shall be deemed to be complied with when and
if the following steps are taken:
(a) All rent shall be payable to Landlord at the address for
Landlord set forth below or at such other address as Landlord may specify from
time to time by written notice delivered in accordance herewith. Tenant's
obligation to pay rent shall not be deemed satisfied until such rent has been
actually received by Landlord.
(b) All payments required to be made by Landlord to Tenant
hereunder shall be payable to Tenant at the address set forth below, or at such
other address within the continental United States as Tenant may specify from
time to time by written notice delivered in accordance herewith.
(c) Any written notice or documents required or permitted to
be delivered hereunder shall be deemed to be delivered upon the earlier to occur
of (1) tender of delivery (in the case of hand-delivered notice), (2) three (3)
days following the deposit of the written notice in the United States Mail,
postage prepaid, Certified Mail, Return Receipt Requested, or (3) upon receipt
by facsimile transmission, in each case, addressed to the parties hereto at the
respective addresses set out below, or at such other address as they have
theretofore specified by written notice delivered in accordance herewith. Tenant
shall be deemed to have received any written notice of documents required or
permitted to be delivered hereunder if Landlord delivers same by facsimile
transmission to (000) 000-0000, Attn.: J. Xxxxxxx Xxxxxx, General Counsel. If
Landlord has attempted to deliver notice to Tenant at Tenant's address reflected
on Landlord's books but such notice was returned or acceptance thereof was
refused, then Landlord may post such notice in or on the Premises, which notice
shall be deemed delivered to Tenant upon the posting thereof.
COMMERCIAL LEASE AGREEMENT PAGE 17 OF 23
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25. HAZARDOUS WASTE. The term "HAZARDOUS SUBSTANCES", as used in this
Lease, shall mean pollutants, contaminants, toxic, or hazardous wastes, or any
other substances, the removal of which is required or the use of which is
restricted, prohibited or penalized by any "ENVIRONMENTAL LAW", which term shall
mean any Law relating to health, pollution, or protection of the environment.
Tenant hereby agrees that (a) no activity will be conducted on the Premises that
will produce any Hazardous Substances, except for such activities that are part
of the ordinary course of Tenant's business activities (the "PERMITTED
ACTIVITIES") provided such Permitted Activities are conducted in accordance with
all Environmental Laws and have been approved in advance in writing by Landlord;
(b) the Premises will not be used in any manner for the storage of any Hazardous
Substances except for any temporary storage of such materials that are used in
the ordinary course of Tenant's business (the "PERMITTED MATERIALS") provided
such Permitted Materials are properly stored in a manner and location satisfying
all Environmental Laws and approved in advance in writing by Landlord; (c) no
portion of the Premises will be used as a landfill or a dump; (d) Tenant will
not install any underground tanks of any type; (e) Tenant will not allow any
surface or subsurface conditions to exist or come into existence that
constitute, or with the passage of time may constitute a public or private
nuisance; and (f) Tenant will not permit any Hazardous Substances to be brought
onto the Premises, except for the Permitted Materials, and if so brought or
found located thereon, the same shall be immediately removed by Tenant, with
proper disposal, and all required cleanup procedures shall be diligently
undertaken pursuant to all Environmental Laws. If at any time during or after
the Term, the Premises are found to be so contaminated or subject to such
conditions, Tenant shall defend, indemnify and hold Landlord harmless from all
claims, demands, actions, liabilities, costs, expenses, damages and obligations
of any nature arising from or as a result of the use of the Premises by Tenant.
As of the date hereof, Landlord has expressly consented to the following
"PERMITTED ACTIVITIES" and/or "PERMITTED MATERIALS":
PERMITTED MATERIALS: Tenant's battery products
PERMITTED ACTIVITIES: The storage and charging of Tenant's battery products
on the premises.
Except as expressly identified herein or on an addendum to this
Lease, Landlord has not consented to any other Permitted Materials
and/or Permitted Activities and none shall exist unless and until
approved in writing by the Landlord. Landlord may enter the Premises
and conduct environmental inspections and tests therein as it may
require from time to time, provided that Landlord shall use
reasonable efforts to minimize the interference with Tenant's
business. Such inspections and tests shall be conducted at
Landlord's expense, unless they reveal the presence of Hazardous
Substances (other than Permitted Materials) or that Tenant has not
complied with the requirements set forth in this Section 25, in
which case Tenant shall reimburse Landlord for the cost thereof
within ten (10) days after Landlord's request therefor.
26. LANDLORD'S CONSENT. When Landlord's consent is required in this
Lease, then Landlord's consent shall not be unreasonably withheld or delayed.
TENANT ACKNOWLEDGES THAT (1) NO REPRESENTATIONS AS TO THE REPAIR OF
THE PREMISES, NOR PROMISES TO ALTER, REMODEL OR IMPROVE THE PREMISES
COMMERCIAL LEASE AGREEMENT PAGE 18 OF 23
21
HAVE BEEN MADE BY LANDLORD (EXCEPT AS MAY BET SET FORTH IN THIS LEASE AND/OR
"EXHIBIT B" ATTACHED TO THIS LEASE), AND (2) THERE ARE NO REPRESENTATIONS OR
WARRANTIES, EXPRESSED, IMPLIED OR STATUTORY, THAT EXTEND BEYOND THE DESCRIPTION
OF THE PREMISES.
EXECUTED by Tenant on April 26, 2000.
TENANT:
@TRACK COMMUNICATIONS, INC.,
a Delaware corporation
By: /s/ W. XXXXXXX XXXXX
----------------------
Name: W. Xxxxxxx Xxxxx
--------------------
Title: Executive V. P. & CFO
Address: 0000 Xxx Xxxxx
Xxxxxxxxxx, XX 00000
EXECUTED by Landlord on April 27, 2000.
LANDLORD:
10th STREET BUSINESS PARK, LTD.
By: /s/ XXXX X. XXXXXX, XX.
-----------------------
Its: General Partner
0000 Xxxxxxx Xxxxxx, Xxxxx 000, XX00
Xxxxxx, Xxxxx 00000
COMMERCIAL LEASE AGREEMENT PAGE 19 OF 23
22
EXHIBIT "A"
DESCRIPTION OF LAND
0000 00xx Xxxxxx, Xxxxx 000, Xxxxx, XX 00000
COMMERCIAL LEASE AGREEMENT PAGE 20 OF 23
23
EXHIBIT "B"
CONSTRUCTION AGREEMENT
1. PLANS.
(a) OUTLINE SPECIFICATIONS. Attached as EXHIBIT B-1 are the
preliminary plans and outline specifications for the construction of the
interior improvements in the Premises (the "IMPROVEMENTS") which are hereby
approved by Landlord and Tenant (the "OUTLINE SPECIFICATIONS").
(b) DRAWINGS. Landlord shall cause to be prepared all plans
and specifications for the Improvements depicted on the Outline Specifications,
including, without limitation, working drawings, construction drawings,
electrical, plumbing and mechanical drawings necessary to construct the
Improvements (the "DRAWINGS"), and shall be accompanied by an estimate of the
cost of constructing the Improvements. The initial Drawings shall be delivered
to Tenant as soon as reasonably practicable after the execution of this Lease.
Tenant shall notify Landlord whether it approves of the submitted Drawings
within fourteen (14) days after Landlord's submission thereof. If Tenant
disapproves of such Drawings, then Tenant shall notify Landlord thereof
specifying in detail the reasons for such disapproval, in which case, Landlord
shall correct the submitted Drawings and deliver them to Tenant for its approval
within ten (10) days after Landlord receives Tenant's notice disapproving the
submitted drawings. Tenant shall have five (5) days to approve or disapprove any
resubmitted Drawings, and Landlord shall have five (5) days to correct any such
resubmitted Drawings disapproved by Tenant. This process shall be repeated until
the Drawings have been finally approved.
(c) CHANGES. After approval of the Drawings, Landlord and
Tenant shall initial the plans in question. Tenant may from time to time make
changes to the Drawings by delivering written notice to Landlord, specifying in
detail the requested change. If Tenant requests any changes to any submitted
Drawings that relate to matters other than changes necessary to the conform the
Drawings to the Outline Specifications or requests any changes to the approved
Drawings, then (1) before any such change will be made, Tenant shall pay the
difference between (A) all additional costs in designing and constructing the
Improvements as a result of any such changes and (B) any reductions in costs in
designing and constructing the Improvements realized in connection with other
change orders and (2) all delays in designing and constructing the Improvements
caused by such changes shall not delay the Commencement Date.
2. CONSTRUCTION OF IMPROVEMENTS. Landlord shall diligently construct
the Improvements in accordance with the Drawings in a good and workmanlike
manner using materials specified in the Drawings and in compliance with Law and
shall pay for all permits, licenses, and all other governmental improvements
requisite for the construction thereof. Landlord assumes no liability for
special, consequential, or incidental damages of any kind whatsoever in
connection with the design or construction of the Improvements, and makes no
representations, warranties, or guaranties regarding the same, expressed or
implied, including, without limitation, warranties of merchantability, fitness
for a particular purpose, or of habitability, except for the one-year
COMMERCIAL LEASE AGREEMENT PAGE 21 OF 23
24
construction warranty provided in the next sentence. Landlord shall warrant that
the design and construction of the Improvements shall be free of defects for a
period of one (1) year after Substantial Completion.
3. SUBSTANTIAL COMPLETION. "SUBSTANTIAL COMPLETION" shall occur when
each of the following conditions is satisfied: the Improvements are
substantially completed in accordance with the Drawings as certified by the
architect preparing the Shell Plans utilizing AIA document G704, Certificate of
Substantial Completion; the Premises may be lawfully occupied; and Landlord has
tendered to Tenant physical possession thereof. Substantial Completion shall
have occurred even though minor details of construction, decoration,
landscaping, and mechanical adjustments remain to be completed by Landlord.
Tenant shall prepare and deliver to Landlord a punch list of incomplete, minor,
detail items within thirty (30) days after Substantial Completion and Landlord
shall use all reasonable efforts to complete such items within thirty (30) days
thereafter, except as to such items that, by their nature, will take a longer
period to complete as set forth in the punch list. The "TARGET DATE" for
Substantial Completion of the Improvements is May 19, 2000. If Substantial
Completion is delayed because of (a) any acts of a Tenant Party, (b) changes
requested by Tenant to any submitted Drawings that relate to matters other than
changes necessary to conform such drawings to the Outline Specification or to
comply with Law, or (c) changes requested by Tenant in the approved Drawings
other than changes necessary to conform such drawings with Law, then the
Commencement Date shall not be extended, but rather shall start on the date
which it would have occurred but for such event. Each day of delay in
Substantial Completion caused by the events described in clauses (a), (b) or (c)
of the preceding sentence or by a Tenant Party is herein called a "TENANT DELAY
DAY". If the actual date of Substantial Completion is delayed beyond the Target
Date, then Landlord shall have no liability therefor and the date of Substantial
Completion shall be extended by the period of any such delay. This Lease shall
remain in full effect notwithstanding any delay in Substantial Completion.
4. ALLOCATION OF CONSTRUCTION COSTS. Landlord shall pay all costs
toward the design and construction of the Improvements depicted on the Outline
Specifications.
5. CONDITION OF PREMISES AT DELIVERY. Prior to delivery and possession
of the Premises to Tenant, Landlord will cause to be removed from the Premises
all rubbish, tools, scaffolding, and surplus materials and will cause the
Premises, interior and exterior, to be cleaned and ready for occupancy. All
floors, floor coverings, roof areas, and glass will be cleaned, both interior
and exterior. The HVAC System and all utility services will be installed and
connected and in good working order, subject to Tenant's obligations and
responsibilities set forth in Section 8 of the Lease.
COMMERCIAL LEASE AGREEMENT PAGE 22 OF 23
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EXHIBIT "C"
PARKING SPACE DESIGNATIONS
COMMERCIAL LEASE AGREEMENT PAGE 23 OF 23
