LEASE AGREEMENT
THIS LEASE AGREEMENT, made by and between XXXXXXX PROPERTIES, a
partnership, hereinafter called Lessor, and FLASHNET COMMUNICATIONS, INC.
hereinafter called Lessee.
WITNESSETH:
1. LOCATION AND TERM: Lessor does hereby demise, let and lease unto Lessee
the following described property:
Approximately 9,810 square feet of space in Lessor's 33,810
square foot building situated on Xxx 0, Xxxxx 0, Xxxxxx
Xxxxxxxxxx Xxxx, Xxxx of Richland Hills, Tarrant County, Texas,
said space also known as 0000 Xxxxxxx Xxxxxxx, Xxxx Xxxxx, Xxxxx
00000;
hereinafter called premises, for a term of twelve (12) months, commencing on
March 1, 1998 and ending on February 28, 1999 to be used as an office for
accounting and custom care call center, and warehouse and kit assembly
facility and not otherwise, under the following terms and conditions:
2. RENT: Lessee agrees to pay to the Lessor at the principal office of the
Lessor in Fort Worth, Tarrant County, Texas, a rental in the amount of
(Confidential treatment has been requested), for each month of the term
hereof, payable in advance without demand on the first day of each month, and
rent shall begin upon delivery of possession of the premises to Lessee with
the first payment to be made on the first day of the following month.
Payments not made within ten (10) days of said due date shall be subject to a
late charge of $.10 for each one dollar of each installment more than (10)
days past due to cover the extra handling expense. If delivery of the
premises is made on other than the first day of the month, then rental for
that month will be prorated. Prior delivery of possession shall not affect
the expiration date of the term of the lease.
3. USE OF PREMISES: Lessee agrees that its use of the premises and all
improvements thereon shall comply with all of the rules, regulations,
ordinances and laws of all governmental authorities applicable to said
premises and the business conducted therein, and will hold the Lessor
harmless from all claims and causes of action arising out of the Lessee's
occupancy and use of the premises during the term of this agreement. Lessee
agrees that it will not perform any acts or carry on any practices which will
injure the building or the use of the premises or constitute a nuisance to
other tenants or neighboring property owners. The Lessee shall keep the
interior and exterior of the premises in a good, clean and orderly manner.
Outside storage will not be permitted except by prior written permission of
Lessor.
4. REPAIRS BY LESSOR: Lessor shall, at its expense, maintain and keep in good
repair the structural portions of the exterior walls, foundation and roof of
the building except that the Lessor shall not be required to maintain or
repair the windows, overhead doors or plate glass in the building. Lessor
shall keep the common area, including the landscaping, parking lot, and
common lighting in good order and repair.
The Lessee shall give the Lessor written notice of defects or the need
for repairs. The Lessor shall not be responsible for any damages to property
or person caused by any portion of the building becoming out of repair until
the Lessor has had reasonable opportunity to have the same repaired after
being notified of such need by the Lessee. After repairs are commenced, they
shall be completed promptly in a good and workmanlike manner.
The Lessor shall not be obligated to repair any damage caused by the
acts of the Lessee, its agents, employees, customers, invitees or guests. The
Lessor shall not be obligated to make any other improvements or repairs of
any kind except as herein provided.
5. REPAIRS BY LESSEE: All maintenance and repairs with respect to the
leased premises and any fixtures attached thereto which are not the
obligation of the Lessor shall be made by the Lessee. The Lessee's obligation
to maintain and repair includes, but is not limited to, the plumbing,
electrical wiring and equipment, heating and air-conditioning equipment,
plate and window glass, overhead doors, pest control and other interior
improvements. The Lessee covenants to take good care of the property and the
fixtures and suffer no waste.
6. ALTERATIONS AND REMODELING: Lessee shall have the right, at its sole cost
and expense, during the term of this lease to alter or remodel the demised
premises provided that the alterations or remodeling does not change the
exterior design of the building or result in a structural change of the
building.
Any alteration, addition or improvement resulting in a change in the
exterior design of the building or resulting structural change of the
building shall not be made without the prior written approval of the Lessor.
All alterations, additions and improvements, including light fixtures,
air-conditioning and heating equipment, which may be made on or attached to
the premises shall become a part and remain upon and be surrendered with the
premises at the end of the lease; provided, however, that if Lessor so elects
and notifies the Lessee ten (10) days before the termination of the lease,
the Lessee shall, at its expense, remove such alterations and additions from
the premises and restore the premises as near as practicable to the condition
it was in at the beginning of this lease, which removal shall occur before
vacating the premises.
7. TAXES: Lessor agrees to pay all ad valorem taxes and special assessments
levied against the demised premises. Lessee shall render and pay all personal
property taxes and all other occupational or use taxes or license fee which
may accrue as a result of the use of the demised premises.
8. UTILITIES: Lessee shall pay for all water, electricity, gas and other
utilities used in the premises. At the option of Lessor, Lessor may furnish
water, electricity or gas to Lessee in which case Lessee shall pay Lessor
upon invoice, for such utilities used at the same rate that Lessee would pay
if Lessee purchased such utility services direct from a public utility
company.
9. INSURANCE: Lessor agrees to obtain and retain in force a policy of hazard
insurance providing fire and extended coverage protection on the demised
premises with the proceeds payable to the Lessor. Lessee agrees that it shall
not keep anything on the premises or use or occupy the premises in such a
manner as will result in an increase in the rates for fire and extended
coverage above the rates customarily charged for building of this type
construction.
Lessee shall be responsible for insuring its personal property.
10. ASSIGNMENTS: Lessee shall not assign this lease agreement or sublease
all or any part of the premises without the prior written consent of the
Lessor, which consent will not be unreasonably withheld, or occupy or permit
the same to be occupied for any business or purpose deemed extra hazardous on
account of fire. Should the Lessee request permission to assign or sublease
the demised premises and such consent is granted, then it is specifically
understood and agreed that Lessee herein shall remain as fully liable for the
fulfillment of every condition of this lease regardless of assignment or
sublease.
Lessor shall have the right to transfer or assign this lease in whole or
in part but shall remain fully liable for the covenants and obligations
imposed on the Lessor herein.
11. DESTRUCTION OF PREMISES: If any part of the leased premises shall be
damaged by fire, the elements ______erwise, but is not thereby rendered
untenable or unfit for occupancy, then the Lessor shall, at its expense,
cause such damage to be repaired ___________ shall not be abated and the
insurance proceeds from such damaged shall be paid to and retained by the
Lessor.
If the leased premises shall be damaged by fire, the elements, casualty
or otherwise so that the leased premised are rendered partially untenable or
unfit for occupancy, then the Lessor, at is expense, shall cause the damage
to be repaired and the rent shall be abated proportionately from the time of
the damage until the leased premises are repaired and fit for occupancy, and
the insurance proceeds from such damage shall be paid to and retained by the
Lessor.
If the leased premises shall be damaged by fire, the elements, casualty
or otherwise so that the leased premises are totally destroyed or rendered
more than 70% unfit for occupancy, then either party reserves the right to
cancel this lease within 30 days after the casualty occurs, and if either
party exercises such option, then this lease shall come to an end in the same
manner as though the term had expired, and the insurance proceeds from such
damage shall be paid to and retained by the Lessor. In the event the lease is
not canceled, then the Lessor shall, at its expense, rebuild the leased
premises to substantially the same condition they were in prior to the
casualty and the rent shall be abated during the time that they are unfit for
occupancy, and the insurance proceeds shall be paid and retained by the
Lessor.
12. MORTGAGES: Lessor shall have the right to mortgage the demised premises
and all its rights hereunder. The Lessee covenants and agrees to execute and
deliver upon request by the Lessor, its successors or assigns, such further
instrument subordinating this lease to any such mortgage lien if such
subordination provides that the mortgagee shall recognize the validity and
continuance of the lease in the event of a foreclosure of the Lessor's
interest.
The mortgagee or trustee under any mortgage or deed of trust and the
owner and holder of the indebtedness secured hereby shall not become
personally liable upon the covenants of this lease until they or their
assigns shall become the owner of the Lessor's interest hereunder.
13. DEFAULT BY LESSOR: In the event the Lessor fails to perform any of the
covenants under this lease within ten (10) days after written notice from the
Lessee, then the Lessee may cure such default for the account and at the
expense of the Lessor by deducting such amount from the rent with interest at
ten (10%) percent per annum.
14. DEFAULT BY LESSEE: If the Lessee fails to pay the rent when due or
defaults in the performance of the agreements, conditions, covenants or terms
contained herein, then the Lessor may enforce performance of this lease in
any of the modes provided by law; and this lease may be forfeited at Lessor's
option if such default continues for a period of ten (10) days after the
Lessor notifies the Lessee of such default and of its intention to declare
the lease forfeited; and thereafter (unless the Lessee shall have completely
removed or cured said default) this lease shall cease and come to an end as
if that were the day originally fixed herein for the expiration of the term;
and the Lessor, its agent, attorney or those claiming under it, shall have
the right, without further notice or demand, to re-enter and remove all
persons and all of the Lessee's property therefrom without being deemed
guilty in any manner of trespass and without prejudice to any remedies for
arrears of rent or breach of covenant.
If any of the events described in the preceding paragraph should occur
and Lessor resumes possession of the premises, then Lessor may re-lease the
premises for the remainder of the term at the best rent the Lessor may
obtain, and Lessee agrees that, notwithstanding the termination of this lease
and possession regained by the Lessor, Lessee will indemnify the Lessor
against any and all loss of rent which the Lessor may sustain during the
remainder of the term of the lease by reason of such termination.
The Lessor shall have a statutory lessor's lien and in addition, Lessor
is given an express lien as security for the rent described herein upon all
the chattels, implements, fixtures, furniture, tools, machinery, or other
personal property which the Lessee now or at any time during the term of the
lease may place upon the demised premises.
If on account of any breach or default by the Lessee of any of Lessee's
obligations contained herein it shall become necessary for the Lessor to
employ an attorney to enforce or defend any of the Lessor's rights or
remedies hereunder, then Lessor shall be entitled to recover a reasonable
attorney's fee from the Lessee.
In the event the Lessee should default in the performance of any
agreement, covenant, condition or term contained herein, then Lessor may
perform the same for Lessee's account, and any amount paid or any expense of
liability incurred by Lessor in the performance of same shall be deemed
additional rent payable by Lessee with interest at ten (10%) percent from
date of payment by Lessor until repayment by Lessee.
15. SURRENDER OF PREMISES: Upon the termination of this lease, the Lessee
shall deliver the demised premises clean and in good order and condition with
natural deterioration only accepted. Upon the termination of this lease,
Lessee shall promptly remove all trade fixtures and personal property and
shall repair any damage caused by such removal unless otherwise agreed upon
in writing by the Lessor.
16. HOLDING OVER BY LESSEE: In the event Lessee holds over after the
expiration of this lease, it shall be deemed to be occupying said premises as
a lessee from month-to-month at 150% of the rental rate of the last month of
the lease term just ended, and subject to all of the conditions, provisions
and obligations of this lease insofar as the same are applicable to a
month-to-month tenancy.
17. PARKING: Lessor grants to the Lessee the right to park motor vehicles
and the right of ingress and egress for itself and its employees, customers,
patrons, invitees and guests over the parking area serving the leased
premises, said area to be specified by Lessor. Lessee agrees that its motor
vehicles and those of its employees will be parked only in this specified
area. Lessor reserves the right of ingress and egress to itself and the other
tenants of Lessor on this and adjacent premises.
18. SIGNS: Lessee shall not place or paint any signs at, on, or about the
premises or paint the exterior walls of the building without the prior
written consent of the Lessor; and the Lessor shall have the right to remove
any sign or signs in order to paint the building or premises or to make any
other repairs or alterations.
19. POSSESSION AND ENJOYMENT: The Lessor covenants that the Lessee, upon
making the payments and performing the conditions and covenants prescribed
herein, shall have peaceful and quiet enjoyment of the leased premises. It is
agreed that by occupying the premises, that Lessee accepts the premises and
acknowledges that they are in the condition called for in this lease, and
that all conditions precedent to Lessee's occupying the premises have been
fulfilled by Lessor.
20. COVENANT TO HOLD HARMLESS: Lessor shall not be liable to the Lessee or
to the Lessee's employees, customers, invitees or visitors for any damage to
person or property caused by an act, omission or neglect of Lessee, and the
Lessee agrees to hold the Lessor harmless from all claims from any such
damage whether the injury occurs on or off the demised premises.
21. ACCESS BY LESSOR: Lessor shall have the right to enter upon the premises
at all reasonable hours to inspect the same or to clean and make repairs to
the premises or any property owned or controlled by the Lessor. Commencing
ninety (90) days prior to the termination of this lease, Lessor may place
"For Lease" signs in and about the premises and may have reasonable access to
the premises for the purpose of exhibiting same to prospective tenants.
22. WAIVER: No waiver by the Lessor of any default or breach of any term,
covenant, condition or provision hereof shall be treated as a waiver of any
subsequent default or breach of the same or any other term, covenant,
condition or provision hereof.
23. NOTICE: Any notice provided for herein shall be considered sufficient if
the letter containing the same is deposited in the United States mail with
postage prepaid addressed to the Lessor at 0000 Xxxxxxx Xxxxxxx, Xxxx Xxxxx,
Xxxxx, 00000, or addressed to the Lessee at 0000 XXXXXXX XXXXXXX, XXXX XXXXX,
XXXXX 00000.
24. SECURITY DEPOSIT: Lessor hereby acknowledges receipt of a security
deposit in the amount of FIVE THOUSAND SEVEN HUNDRED TWENTY TWO AND 50/100
DOLLARS ($5.722.50) that will be refunded to Lessee upon completion of the
lease provided Lessee is not in default under any terms of the lease. Lessor
shall have the right to apply the funds in the security deposit to pay the
rent, any expenses or correct any default by the Lessee which the Lessee
fails to pay or correct after ten (10) days notice in writing from the
Lessor. If at any time the deposit with the Lessor becomes less than the
amount specified above, then the Lessee shall replenish such security deposit
upon request by the Lessor.
25. OPERATIONS ESCALATOR: Lessee shall pay to Lessor, annually, Lessee's
prorata part of operating expenses for the building in which the premises
leased to Lessee are located to the extent that the total of those expenses
exceeds seventy-three cents ($.73) per square foot. For this purpose,
"operating expenses" include ad valorem taxes on the building and the tract
of land on which it is located, the cost of fire and extended coverage
insurance and liability insurance, any utilities paid by Lessor that are
common to the building, common area maintenance, including parking lot
sweeping, yard and landscape maintenance, sprinkler system maintenance, and
maintenance of exterior lighting fixtures and equipment. Lessor shall xxxx
Lessee for Lessee's prorata part of annual operating expenses, and payment of
Lessee's prorata part will be due within thirty days after receipt of
Lessor's billing. Lessee's prorata part of operating expenses shall be
determined as follows:
a) After year end, Lessor shall determine the total annual operating
expenses;
b) The total annual operating expenses shall be divided by 33,810,
being the number of square feet in the building to arrive at the
total annual operating expenses per square foot;
c) The amount, if any, by which total annual operating expenses per
square foot exceeds seventy-three cents ($.73) shall be
multiplied by 9,810, being the number of square feet in the
premises leased to Lessee, and the product of this multiplication
will be Lessee's prorata part of operating expenses to be paid to
Lessor.
If total annual operating expenses per square foot are seventy-three
cents ($.73) or less, no payment for operating expenses will be due
from Lessee to Lessor.
26. OTHER: Lessor will warrant the air conditioning units for major repairs
or replacement of compressors and heat exchangers for the entire term of the
lease. Normal maintenance and minor repairs shall be the responsibility of
the Lessee. The units will be in good working order on occupancy.
27. SIGN BAND: The exterior lighting for the sign band is on one meter.
Lessor will pay this xxxx for the entire center and prorate the expenses to
the individual tenants. Lessee's share of this expense is 4/14 of the entire
xxxx.
IN WITNESS WHEREOF, the parties have executed this instrument in
triplicate on this the 13th day of February, 1998.
LESSOR:
XXXXXXX PROPERTIES
By /s/ Xxxxx X. Xxxx
--------------------------------
Xxxxx X. Xxxx, General Manager
LESSEE:
FLASHNET COMMUNICATIONS, INC.
By /s/ [illegible]
--------------------------------
