EXHIBIT 10.16
STATE OF GEORGIA
COUNTY OF
OFFICE SPACE LEASE
THIS LEASE, made this 1st day of DECEMBER, 1999, between Township
Residential, Inc., Agent for 3131 Piedmont Road having its principle office at
3131 Piedmont Road, N.E., Atlanta, GA 30305 (herein called "Landlord") and Tom
McMurrain Global E-Tutor (herein called "Tenant").
1. PREMISES AND TERM. Landlord hereby rents and leases to Tenant and
Tenant hereby rents and leases from Landlord the following described space
(hereby called "Premises") being approximately 410 square feet located on the
2nd Floor in 3131 Piedmont Road, Building located at __________________,
____________, Georgia, the Land Lot 61 of the 17th District of Fulton County,
Georgia (herein called "Building"); premises being more particularly shown and
outlined on the plan attached hereto as Exhibit "A" and made a part hereof, FOR
A TERM to commence on the 1 day of December, 1999 , and to end at 6:00 P.M. on
the ______ day of on a month to month. **, (herein called the "Term"). No
easement for light and air is granted hereunder. **60 day notice is required by
both parties to terminate this lease.
2. RENTAL AND COVENANTS TO PAY RENT.
(a) As consideration for this Lease and the services provided
Tenant hereunder, Tenant agrees to pay to Landlord at Landlord's address above
or at such other place or to such other party as Landlord designates in writing,
without demand, deduction or set-off, rental at the rate of: $1,200.00 PER MONTH
($_____) per year (hereinafter called "Base Rental"), payable in equal monthly
installments of $1,200.00 in advance, on the first day of each calendar month
during Term. (A prorata monthly installment shall be due for the first and last
month of Term should Term begin or end on other than the first or last day of
the calendar month).
(b) It is understood that the Base Rental does not anticipate
economic inflation in the cost of goods and services necessary for the proper
operation and maintenance of the Building that could occur during Term.
Therefore, in order that rental paid hereunder during the Term reflects any
economic inflation, Tenant agrees that the Base Rental stated herein shall be
increased but not decreased as provided below.
(c) Lessor and Lessee agree that the Base Rental stated herein
shall be adjusted as soon as practicable after January 1st of each year during
the term of this lease (hereinafter called the "Adjustment Dates") to reflect
any increase in cost of goods and services necessary to the operation and
maintenance of the Building in which the Premises are located. The Base Rental
shall be adjusted on each adjustment date to reflect such increases, if any, as
are reflected by changes in the "All-Items" figures In the "Consumer Price Index
- - U. S. City Average for All Urban Consumers" (1967=100) of the Bureau of Labor
Statistics of the United States Department of Labor. On each Adjustment Date the
adjusted Base Rental shall be determined by
dividing the original Base Rental by the index number published in the issue of
"Monthly Labor Review" for the December preceding the date of execution hereof,
and subsequently multiplying that amount by the index number published in the
"Monthly Labor Review" for the December immediately preceding each annual
Adjustment Date. If the "Consumer Price Index" published by the Bureau of Labor
Statistics is discontinued, then the "Consumer Price Index" published by the
United States Department of Commerce shall be used (with proper adjustment) and
if the Department of Commerce Index is discontinued then the Landlord shall
select a suitable substitute. In no event shall the rental payable hereunder be
reduced by any such adjustment.
(d) If during any calendar year during the term of this Lease
or any renewal or extension thereof, the cost and expenses paid or incurred by
or on behalf of Landlord on account of the operation, maintenance and repair of
the Building (herein the "O&M Expenses") exceed the amount of such O&M Expenses
for the calendar year ending December 31st of the year during which this Lease
is executed (herein the "Base Year"), then Tenant shall pay to Landlord a
monthly additional payment (herein the "Additional Rent") based on Tenant's
proportionate share of the increase in O&M Expenses over the Base Year. Landlord
shall furnish to Tenant within three (3) months after the end of any calendar
year a statement of O&M Expenses incurred during said year and during the Base
Year. Tenant's annual share of such increase shall be the excess of the O&M
Expenses for the year prior to the rendition of the statement over the O&M
Expenses for the Base Year multiplied by a fraction, the numerator of which is
the area of the Premises leased to Tenant and the denominator of which is the
total rentable area of the Building (________ square feet). Commencing the first
(1st) day of the month following the tender of the above statement, Tenant shall
pay to Landlord as Additional Rent an amount equal to one-twelfth (1/12th) of
Tenant's annual share of the increased O&M Expenses as determined above. Such
Additional Rent is in addition to Base Rent and all other payments due Landlord
under this Lease and shall continue in effect monthly thereafter until the
earlier of the end of the term of this Lease or the rendition of a statement for
increase in the O&M Expenses for a subsequent year or years. Upon written
request, Tenant shall be permitted to examine Landlord's books and records
relating to the operation and maintenance of the Building at the Building
Management Office during regular office hours in order to verify any increase in
O&M Expenses; provided, however, that no such examination shall excuse or reduce
the payment of Additional Rent unless and until it is finally determined that
Landlord's statement of increased O&M Expenses was erroneous, and provided
further that Tenant and its agents and accountants shall agree in writing to
retain all such information confidential. The term "O&M Expenses" shall include
all costs of operation, maintenance and repairs of the building as determined by
generally accepted accounting practices, including, but not limited to: utility
service cost (water, sewer, telephone, gas, electricity and fuel); sanitary
charges and trash removal; insurance premiums; license, permit and inspection
fees; janitorial and security services; labor; materials; supplies, equipment
and tools; management fees and all other costs of operating, maintenance and
repair of the Building and its equipment, fixtures, ground and parking areas;
except for taxes, depreciation, interest expense or executive salaries.
(e) If during any calendar year during the term of this Lease
or any renewal or extension thereof the taxes and assessments paid or incurred
by or on behalf of Landlord on account of Landlord's ownership of the Building
(herein the "Tax Expenses") exceed the amount
of such Tax Expenses for the calendar year ending December 31 of the year during
which this Lease is executed (herein the "Base Year"), then Tenant shall pay to
Landlord a monthly additional payment (herein the "Additional Tax Rent") based
on Tenant's proportionate incurred during said year and during the Base Year.
Tenant's Expenses for the Year prior to Landlord's rendering of the statement
over the Tax Expenses for the Base Year multiplied by a fraction, the numerator
of which is the area of the Premises leased to Tenant and the denominator of
which is the total rentable area of the Building ( _______ square feet).
Commencing the first (1st) day of the month following Landlord's rendering of
the above statement, Tenant shall pay to Landlord as Additional Tax Rent an
amount equal to one twelfth (1/12th) of Tenant's annual share of the increased
Tax Expenses as determined above. Such Additional Tax Rent is in addition to
Base Rent and all other payments due Landlord under this Lease and shall
continue in effect monthly thereafter until the earlier of the end of the term
of this Lease or the rendering by Landlord of a statement for increase in Tax
Expenses for a subsequent year or years. Upon written request, Tenant shall be
permitted to examine Landlord's books and records relating to taxes and
assessments on the Building at the Building Management Office during regular
office hours in order to verify any increase in Tax Expenses; provided, however,
that no such examination shall excuse or reduce the payment of Additional Tax
Rent unless and until it is finally determined that Landlord's statement of
increased Tax Expenses was erroneous, and provided further that Tenant and its
agents and accountants shall agree in writing to retain all such information
confidential. The term "Tax Expenses" shall include all taxes and assessments
levied on the Building by any governmental entity, including, but not limited
to: real and personal property taxes; gross receipts taxes; and any and all
other governmental assessments related to the Building, except for income taxes.
(f) Any rental due Landlord under this Lease shall be
considered past due for purposes hereon on the fifth day of any month, and shall
incur a monthly service charge of 1-1/2% per month for that and each subsequent
month past due. Any other amounts payable to Landlord under this Lease, with the
exception of rent, shall be considered past due thirty (30) days from Landlord's
billing date and shall incur a monthly service charge of 1-1/2% for that and
each subsequent month past due. (A monthly rate of 1-1/2% is equivalent to an
annual percentage rate of 18%). No delay by Landlord in tendering the Index
Comparative Statement, increase of costs statement, or statement of tax increase
shall affect the accrual of Tenant's obligations to pay increased rent from the
first day of each calendar year. Tenant shall continue to pay the base in effect
for the preceding year until the Comparative Statements are delivered; however,
upon the delivery of the statements, Tenant shall pay the excess rent which has
accrued between the first of the year and the date of receipt of the Comparative
Statements.
(g) Tenant agrees any increase in rentals payable by Tenant
under the provisions of this Paragraph 2 shall, for purposes of the default
provisions hereof, be deemed as additional rental due from Tenant and shall
entitle Landlord to all remedies provided for herein and at law or equity on
account of Tenant's failure to pay rent. It is further understood and agreed
that Tenant's payments of increased rentals under this Paragraph 2 shall not be
deemed payments of rental as that term is construed relative to governmental
wage and price controls or analogous governmental options affecting the amount
of rental which Landlord may charge Tenant.
3. DELIVERY OF POSSESSION TO TENANT BY LANDLORD. If Landlord for
any reason whatsoever cannot deliver possession of Premises to Tenant at the
commencement of the Term as above specified, this Lease shall not be void or
voidable, nor shall Landlord be liable to Tenant for any loss or damage
resulting therefrom; but in that event, there shall be a proportionate reduction
of rent covering the period between the commencement of the Term and the time
when Landlord can deliver possession. Moreover, the Term of this Lease shall be
proportionately extended for an additional period of time to the end that this
Lease shall provide for a full Term as herein provided. However, if for any
reason, other than strikes or acts of God beyond the control of the Landlord,
possession of Premises is not delivered to Tenant within one hundred and twenty
(120) days of the beginning of Term as specified in Paragraph 1 hereof, then
this Lease shall be voidable by either party giving written notice to the other
and, in such event, any monies advanced by Tenant to Landlord shall be returned
and the parties hereto shall have no further obligation one to the other.
Notwithstanding anything herein stated to the contrary, in the event that
Landlord cannot deliver possession of Premises to Tenant at the commencement of
the Term, as above specified, because of Tenant's failure to perform the items
or pay the amount specified in the Work Letter attached hereto as Exhibit "B"
and incorporated herein by the provisions of Paragraph 34 infra, this Lease
shall be voidable at the option of the Landlord, only, at any time after the
commencement of said Term, and should Landlord so elect to void this Lease, all
monies advanced by Tenant to Landlord shall be retained by Landlord as
liquidated damages (the parties here recognizing and acknowledging the
difficulty of determining such damages), and thereafter the parties hereto shall
have no further right, claim or obligation one to the other.
4. REPAIRS BY TENANT AND REMOVAL OF IMPROVEMENTS
ALTERATIONS
(a) Tenant accepts Premises in their present condition as
suited for the use intended by Tenant. Tenant will, at Tenant's expense, take
good care of Premises and the fixtures and appurtenances therein, and will
suffer no active or permissive waste or injury thereof; and Tenant shall, at
Tenant's expense, but under the direction of Landlord, promptly repair any
injury or damage to Premises or Building caused by the misuse or neglect thereof
by Tenant, or by persons permitted on Premises by Tenant, or Tenant moving in or
out of Premises.
(b) Tenant will not, without Landlord's written consent, make
any alterations, additions or improvements in or about Premises and will not do
anything to or on the Premises which will increase the rate of fire insurance on
the Building. All alterations, additions or improvements (including, but not
limited to, carpets, drapes and drape hardware) made or installed by Tenant to
the Premises shall become the property of Landlord at the expiration of this
Lease. Landlord reserves the right to require Tenant to remove any improvements
or additions made to the Premises by Tenant; Tenant further agrees to do so
prior to the expiration of Term or within thirty (30) days after notice from
Landlord, whichever shall be later, provided that Landlord gives such notice no
later than thirty (30) days after expiration of this Lease.
(c) No later than the last day of Term, Tenant will remove all
Tenant's personal property and repair all injury done by or in connection with
installation or removal of said
property and surrender Premises (together with all keys to Premises) in as good
condition as they were at the beginning of Term, reasonable wear and damage by
fire, the elements of casualty excepted. All property of Tenant remaining on
Premises after expiration of Term shall be deemed conclusively abandoned and may
be removed by Landlord, and Tenant shall reimburse Landlord for the cost of
removing the same, subject however, to Landlord's right to require Tenant to
remove any improvements or additions made to Premises by Tenant pursuant to the
preceding sub-paragraph (b).
(d) In doing work of any nature in, to or about Premises,
Tenant will use only contractors or workmen approved by Landlord. Tenant shall
promptly remove any lien for material or labor claimed to be furnished to
Premises on Tenant's or any subtenant's behalf.
5. FOOD OR DRINK MACHINES. Tenant shall maintain no food or drink coin
operating or vending machines within Premises or Building without the written
consent of Landlord; such consent shall not preclude Landlord from charging
Tenant for utility costs therefor under Paragraph 9 (c).
6. TENANT RISK. Tenant agrees that all personal property brought into
the Premises by Tenant, its employees, licensees and invitees shall be at the
sole risk of Tenant and Landlord shall not be liable for theft thereof or of any
money deposited therein or for any damages thereto; such theft or damage being
the sole responsibility of Tenant.
7. REPAIRS BY LANDLORD. Landlord shall not be required to make any
repairs to Premises except repairs necessary for safety and tenantability.
8. PURPOSE. Tenant shall use and occupy Premises as office and related
purposes only. Tenant's use of Premises shall not violate any ordinance, law or
regulation of any governmental body or the "Rules and Regulations" of Landlord,
as made a part hereof. Moreover, Tenant agrees to conduct its business in the
manner and according to the generally accepted written or unwritten code of
ethics or business principles of the business or profession in which Tenant is
engaged, and in case of breach of this covenant, Tenant agrees that Landlord may
terminate this Lease by giving Tenant sixty (60) days notice to vacate.
9. SERVICES - ELEVATOR, WATER, CLEANING & ELECTRICITY.
(a) Landlord shall furnish the following services without
charge, at the proper season, during reasonable hours (8:00 a.m. to 6:00 p.m. on
Mondays through Fridays, inclusive, and 8:30 a.m. to 1:00 p.m. on Saturdays) on
normal business days, except holidays observed by national banks in Atlanta,
Georgia, as legal holidays:
(ii) Air conditioning in Landlord's judgment
sufficient to reasonably cool or heat the
Premises;
(iii) Water for lavatory purposes without charge;
(iv) Common use restrooms, toilets;
(v) Cleaning services except Saturdays and where
the Premises consist of a store or stores on
the ground floor.
(b) Landlord shall also furnish electric current on Premises
for lighting and for small business machines only (e.g., typewriters and other
small office equipment) using 110 volt, 20 AMP circuits. Tenant will not use any
electrical wiring installations or interfere with the reasonable use thereof by
other uses in the Building. Tenant will not, without Landlord's prior written
consent in each instance (which shall not be unreasonably withheld) connect any
additional items (such as electric heaters, data processing equipment or copy
machines) to the Building's electrical distribution system, or make any
alterations or addition to such system. Should Landlord grant such consent, all
additional circuits or equipment required therefore shall be provided by
Landlord and the reasonable cost thereof shall be paid by Tenant upon Landlord's
demand.
(c) If Tenant uses any of the services enumerated in this
Paragraph in an amount or for a period in excess of that provided for herein,
then Landlord reserves the right to charge Tenant as additional rent a
reasonable sum as reimbursement for the direct cost of such added services. In
the event of disagreement as to reasonableness of such charge, the opinion of
the appropriate local utility company or a local independent professional
engineer shall prevail.
(d) Landlord shall in no way be liable for cessation of any of
the above services caused by strike, accident or reasonable breakdown, nor shall
Landlord be liable for damages from the stopping of elevators or elevator
service, or any of the fixtures or equipment in the Building being out of repair
or for injury to person or property, caused by any defects in the electrical
equipment, heating, ventilating and air conditioning system, elevators or water
apparatus, or for any damages arising out of failure to furnish the services
enumerated in this Paragraph 9.
(e) Landlord's obligation to furnish light, heat and power
shall be conditioned upon the availability of adequate energy sources. Landlord
shall have the right to reduce heat and lighting within the Common Areas as
required by any mandatory or voluntary fuel or energy saving, allocation or
similar statute, order or program.
10. DESTRUCTION OR DAMAGE TO PREMISES.
(a) If less than twenty-five percent (25%) of the rental area
of the Premises is destroyed or rendered untenantable by any casualty, Landlord
shall rebuild and repair the Premises and the Base Rental only shall abate by
the same proportion as the floor area of the Premises destroyed or rendered
untenantable bears to the entire floor area of the Premises. Landlord's
obligation to rebuild and repair the Premises is limited to restoring the
Premises to substantially the condition in which the same existed prior to the
casualty, and any obligation of Landlord's to rebuild and repair is hereby
expressly conditioned upon the receipt by Landlord of insurance proceeds for
such purposes. Full rent shall recommence when the Premises is rebuilt and
repaired.
(b) If at least twenty-five percent (25%) of the rental area
of the Premises is destroyed or rendered untenantable by any casualty, then
Landlord may either elect to terminate this Lease (rent being prorated as of the
date of such termination) or to rebuild and repair the Premises. Landlord shall
give written notice to Tenant of such election within ninety (90) days after the
occurrence of such casualty. Should Landlord elect to rebuild and repair the
Premises, rental shall abate by the same proportion as the floor area of the
Premises destroyed or rendered untenantable bears to the entire floor area of
the Premises. Landlord's obligation to rebuild and repair the Premises is
limited to restoring the Premises to substantially the condition in which the
same existed prior to the casualty, and any obligation of Landlord's to rebuild
and repair is hereby expressly conditioned upon the receipt by Landlord of
insurance proceeds for such purposes. Full rent shall recommence when the
Premises is rebuilt and repaired.
(c) If at least twenty-five percent (25%) of the gross rental
area of the Building in which the Premises is located is destroyed or
substantially damaged by any casualty, notwithstanding that the Premises may be
unaffected by such casualty, Landlord may terminate this Lease by giving to
Tenant thirty (30) days prior written notice of Landlord's election so to do,
which notice shall be given, if at all, within ninety (90) days following the
date of said occurrence.
Rent shall be prorated as of the date of such termination.
11. RULES AND REGULATIONS. Tenant will observe and comply with the
"Rules and Regulations" attached hereto and made a part hereof, and such further
reasonable rules and regulations as Landlord may prescribe, on written notice to
Tenant, for the safety, care and cleanliness of the Building, and the comfort,
quietness and convenience of other occupants of the Building.
12. DEFAULT CLAUSE. If rent is not paid within five (5) days after
the date same is due (no demand for rent or notice to Pay being required); or if
Tenant defaults for thirty (30) days after written notice thereof in performing
any other of Tenant's obligations hereunder; or if Tenant is adjudicated as
bankrupt; or if a permanent receiver is appointed for Tenant's property,
including Tenant's interest in Premises, and such receiver is not removed within
sixty (60) days after written notice from Landlord to Tenant to obtain such
removal; or if, whether voluntarily or involuntarily, Tenant takes advantage of
any debtor relief proceedings under any present or future law, whereby the rent
or any part thereof is, or is proposed to be, reduces or payment thereof
deferred; or if Tenant makes an assignment for benefit of creditors; of if
Premises or Tenant's effects or interest therein should be levied upon or
attached under process against Tenant, not satisfied or dissolved within thirty
(30) days after written notice from Landlord to Tenant to obtain satisfaction
thereof; then, and in any of said events, Landlord at its option may at once, or
within six (6) months thereafter (but only during continuance of such default or
condition) terminate this Lease by written notice to Tenant. After an authorized
assignment or subletting the occurring of any of the foregoing defaults or
events shall affect this Lease only if caused by or happening to the assignee or
sublessee. Upon such termination by Landlord, Tenant will at once surrender
possession of Premises to Landlord and remove all of Tenant's effects therefrom;
and Landlord may forthwith re-enter the Premises and repossess himself thereof,
and remove all persons and effects therefrom, using such force as may be
necessary without being guilty of trespass, forcible entry or detainer or other
tort.
13. RELETTING BY LANDLORD. Landlord, as Tenant's agent, without
termination of this Lease, upon Tenant's breach or default of this Lease, may at
Landlord's option enter upon and rent Premises at the best price obtainable by
reasonable effort, without advertisement, and by private negotiations and for
any term Landlord deems proper. Tenant shall be liable to Landlord for the
deficiency if any, between all rent reserved hereunder and the total rental
applicable to the Term hereof obtained by Landlord on re-letting after deducting
Landlord's expenses in restoring Premises and all cost incident to such
re-letting.
14. EARLY TERMINATION. No termination of this Lease prior to the
normal ending thereof by lapse of time or otherwise shall affect Landlord's
right to collect rent for the period prior to termination thereof.
15. ASSIGNMENT AND SUBLETTING. Tenant may not, without the prior
written consent of Landlord endorsed hereon (such consent may be granted or
withheld in the sole and absolute discretion of Landlord) assign this Lease or
any interest hereunder, or sublet Premises or any part thereof, or permit the
use of Premises by any party other than Tenant. Consent to one assignment or
sublease shall not destroy or waive this provision, and all later assignments
and subleases shall likewise be made only upon prior written consent of
Landlord. Subtenants or assignees shall become liable directly to Landlord for
all obligations of Tenant hereunder without relieving Tenant's liability.
Landlord may at its option lease the whole or any portion of the Premises
directly to Tenant's prospective subtenant or assignee in which event Tenant
shall be released from all liability with respect to the portion of the Premises
so leased.
16. EMINENT DOMAIN.
(a) If any part of the Premises is taken under the power of
eminent domain (such term as used herein includes friendly acquisition or deed
in lieu of condemnation), then this Lease shall terminate on the date Tenant is
required to yield possession thereof to the condemning or acquiring authority.
(b) If any portion of the Building in which the Premises is
located is taken under eminent domain, then Landlord at its option may terminate
this Lease as of the date possession is required to be surrendered to the
condemning or acquiring authority by giving Tenant ninety (90) days prior
written notice of Landlord's election to terminate this Lease.
(c) No other taking under the power of eminent domain,
including, but not limited to, road widening, a taking of the real property
surrounding the Building, or a taking of any portion of the parking area shall
affect this Lease.
(d) Tenant shall have no right to any award or compensation in
connection with any exercise of the power of eminent domain, except that Tenant
may claim and receive awards for moving expense, removal of trade fixtures, or
damage to Tenant's business if the same are allowed by law.
17. ENTRY. Landlord may enter Premises at reasonable hours with
prospective purchasers or tenants or to inspect Premises or to make repairs
required of Landlord under the terms hereof or repairs to, adjoining space
within the building; such entry by Landlord shall not entitle Tenant to any rent
abatement.
18. TRANSFER OF TENANTS. In the event the rooms and offices rented
to Tenant are less than 1,490 square feet in area, Landlord reserves the right,
at its option and upon giving 30 days written notice in advance to the Tenant to
transfer and remove the Tenant from Premises to any other available rooms and
offices of substantially equal size and area and equivalent rental in the
Building of which Premises are a part. Landlord shall bear the expense of said
removal as well as the expense of any renovations or alterations necessary to
make the new space substantially conform in layout and appointment with the
original Premises. Landlord may exercise the right to so relocate Tenant under
this paragraph at any time including but not limited to, the period before
Tenant takes possession of Premises.
19. SUBORDINATION. This Lease shall be subject and subordinate to
any first priority deed to secure debt or security deed which may now or
hereafter affect the real property of which Premises form a part, and also to
all renewals, modifications, extensions, consolidations, and replacements of
such first priority deed to secure debt or security deed. Although no instrument
of act on the part of Tenant shall be necessary to effectuate such
subordination, Tenant will, nevertheless, execute and deliver such further
instruments confirming such subordination of this Lease as may be desired by the
holders of any first priority deed to secure debt or security deed. Tenant
hereby appoints Landlord its attorney in fact, irrevocably, to execute and
deliver any such instrument for Tenant. Notwithstanding the subordination of
this Lease as referred to in the preceding paragraph, upon a foreclosure of any
deed to secure debt or security deed or other instrument given to secure an
indebtedness, which instrument is prior to this Lease, the holder of said
instrument or the purchaser at foreclosure sale may, at its election, foreclose
subject to this Lease or elect to continue this Lease in full force and effect
on and after such foreclosure, notwithstanding the fact that such instrument is
prior to this Lease. Unless Tenant is notified in writing by the holder of such
instrument or purchaser at foreclosure sale that this Lease is terminated as a
result of foreclosure, this Lease shall continue in full force and effect
notwithstanding any such foreclosure.
20. INDEMNITY AND HOLD HARMLESS. Notwithstanding that joint or
concurrent liability may be imposed upon Landlord by law, Tenant shall
indemnify, defend and hold harmless the Landlord and Premises, at Tenant's
expense, against: (i) any default by Tenant or sub-tenant hereunder; of (ii) any
act of negligence of Tenant or its agents, contractors, employees, invitees or
licensees; or (iii) all claims for damages to persons or property by reason of
the use or occupancy of Premises unless resulting from affirmative acts of
negligence by Landlord or its representatives. Moreover, Landlord shall not be
liable for any damage or injury to Premises, to Tenant's property, to Tenant,
its agents, contractors, employees, invitees or licensees, arising from any use
of condition of Premises, the Building, or any sidewalk or entranceway serving
the Building, or the act of neglect of co-tenants or the malfunction of any
equipment or apparatus serving the Building. Any and all claims for any damage
referred to in this Paragraph are hereby waived by Tenant.
21. FIRE AND EXTENDED COVERAGE AND WAIVER OF SUBROGATION
THEREUNDER. Tenant shall carry fire and extended coverage insurance insuring its
interest in Tenant's improvements in Premises and its interest in its office
furniture, equipment and supplies, and Tenant hereby waives any rights of action
against Landlord for loss or damage covered by such insurance and Tenant
covenants and agrees with Landlord that it will obtain a waiver from the carrier
of such insurance releasing such carrier's subrogation rights as against
Landlord. Landlord shall carry fire and extended coverage insurance insuring its
interest in Premises, and Landlord hereby waives any rights of action against
Tenant for loss or damage covered by such insurance and Landlord covenants and
agrees with Tenant that it will obtain a waiver from the carrier of such
insurance releasing such carrier's subrogation rights as against Tenant.
22. REMEDIES CUMULATIVE. The rights given to Landlord herein are
in addition to any rights that may be given to Landlord by any statute or
otherwise.
23. HOLDING OVER. If Tenant remains in possession after expiration
of Term hereof, with Landlord's acquiescence and without any distinct agreement
between the parties, Tenant shall be a tenant at will and such tenancy shall be
subject to all the provisions hereof, except that the monthly portion of the
Base Rental shall be doubled for the entire hold-over period and there shall be
no renewal of this Lease by operation of law. Nothing in this Paragraph shall be
construed as a consent by Landlord to the possession of Premises by Tenant after
the expiration of the Term.
24. NO WAIVER OR CHANGES. The failure of either party to insist in
any instance on strict performance of any covenant or condition hereof, or to
exercise any option herein contained shall not be construed as a waiver of such
covenant, condition or option in any other instance. This Lease cannot by
changed or terminated orally.
25. TENANT'S ESTOPPEL. Tenant shall, from time to time, upon not
less than ten (10) days prior written request by Landlord, execute, acknowledge
and deliver to Landlord a written statement certifying that this Lease is
unmodified and in full force and effect (or if there have been modifications
that the same is in full force and effect as modified and stating the
modifications), the dates to which the rent and other charges have been paid,
and whether or not to the best of Tenant's knowledge Landlord is in default
hereunder (and if so, specifying the nature of the default), it being intended
that any such statement delivered pursuant to this Paragraph may be relied upon
by a prospective purchaser of Landlord's interest or mortgagee of Landlord's
interest or assignee of any security deed upon Landlord's interest in the
Premises.
26. MARGINAL NOTATIONS. The marginal notations in this Lease are
included for convenience only and shall not be taken into consideration in any
construction or interpretation of this Lease or any of it provisions.
27. NOTICE.
(a) Any notice by either party to the other shall be, valid
only if in writing and shall be deemed to be duly given only if delivered
personally or sent by registered or certified mail
addressed (a) if to Tenant, at the Building, and (b) if to Landlord, at
Landlord's address set forth above, or at such other address for either party as
that party may designate by notice to the other; notice shall be deemed given,
if delivered personally, upon delivery thereof, and if mailed, upon the mailing
thereof.
(b) Tenant hereby appoints as its agent to receive of all
dispossessory or distraint proceedings, the person occupying Premises; and if
there is no person occupying same, then such service may be made by attachment
thereof on the main entrance to Premises.
28. HEIRS AND ASSIGNS. The provisions of the Lease shall bind and
enure to the benefit of Landlord and Tenant, and their respective successors,
heirs, legal representatives and assigns; it being understood that the term
"Landlord", as used in this Lease, means only the owner, or the lessee for the
time being of the land and Building of which Premises are a part, so that in the
event of any sale or sales of said property or of any lease thereof, the
Landlord named herein shall be and hereby is entirely freed and relieved of all
covenants and obligations of Landlord hereunder accruing thereafter, and it
shall be deemed without further agreement that the purchaser, or the lessee, as
the case may be, has assumed and agreed to carry out any and all covenants and
obligations of Landlord hereunder during the period such party has possession of
the land and Building. Should the land and the entire Building be severed as to
ownership by sale and/or lease, then the owner of the entire Building or lessee
of the entire Building that has the right to lease space in the Building to
tenants shall be deemed the "Landlord". Tenant shall be bound to any succeeding
party "Landlord" for all the terms, covenants and conditions hereof and shall
execute any attornment agreement not in conflict herewith at the request of any
succeeding party landlord.
29. ENTIRE AGREEMENT. This Lease contains the entire agreement of
the parties hereto and no representations, inducements, promises or agreements,
oral or otherwise between the parties not embodied herein, shall be of any force
or effect.
30. SECURITY DEPOSIT. Tenant has this day deposited with Landlord
the sum of $ _______ as security for the performance by Tenant of all the terms,
covenants and conditions of the Lease upon Tenant's part to be performed, which
sum shall be returned to Tenant after the expiration of the Term hereof,
provided Tenant has fully performed hereunder. Landlord shall have the right to
apply any part of said deposit to cure any default of Tenant and if Landlord
does so, Tenant shall upon demand deposit with Landlord the amount so applied so
that Landlord shall have the full deposit on hand at all times during the Term
of this Lease. In the event, of a sale of the Building or a lease of the
Building, subject to this Lease, Landlord shall have the right to transfer the
security to the vendee or lessee, and Landlord shall thereupon be released from
all liability for the return of such security and Tenant shall look to the new
landlord solely for the return of said security and this provision shall apply
to every transfer or assignment made of the security to a new landlord. The
security deposited under this Lease shall not be assigned or encumbered by
Tenant without the written consent of Landlord and any such assignment or
encumbrance shall be void.
31. ATTORNEY'S FEES AND HOMESTEAD. If any rent owing under this
Lease is collected by or through an attorney at law, Tenant agrees to pay ten
percent (10%) thereof as attorney's fees. Tenant waives all homestead rights and
exemptions which he may have under any law as against any obligation owing under
this Lease. Tenant hereby assigns to Landlord his homestead and exemption.
The parties "Landlord" and "Tenant" and pronouns relating thereto, as
used herein, shall include male, female, singular and plural, corporation,
partnership or individual, as may fit the particular parties.
32. NO ESTATE. Tenant has only a usufruct under this Agreement not
subject to levy and sale; no estate shall pass out of Landlord.
33. TIME OF ESSENCE. Time is of the essence of this Agreement.
34. WORK LETTER. Attached hereto as Exhibit "B", and by this
reference made a part hereof, is a Work Letter indicating the items to be
performed by Landlord to prepare Premises for occupancy by Tenant. Said Work
Letter also sets forth those items to be performed by Tenant prior to occupancy
and the amount of money due from Tenant prior to occupancy for those items of
work performed by Landlord in excess of Building Standards.
35. SPECIAL STIPULATIONS. Special Stipulations, as set forth
below, shall control if in conflict with any of the foregoing provisions of this
Lease and by reference are made a part hereof.
(a) Any renewal or extension of this Lease shall be subject to
all the terms and conditions hereof, including, but not limited to Paragraph 2,
supra, unless such renewal or extension shall specifically and affirmatively
state otherwise.
(b) In the event a lender comes in possession of the Building
in which the Premises are located through foreclosure or deed in lieu thereof,
the Tenant shall not look to said lender for return of security deposit unless
Tenant has proved that such security deposit has been transferred to said lender
by Landlord.
(c) Tenant shall not undertake to regulate thermostats located
within Premises. Maintenance personnel only are authorized to do so.
IN WITNESS WHEREOF, the parties herein have hereunto set their hands
and seals, in quadruplicate, the day and year first above written.
** Signed, sealed and * TENANT
delivered in the
presence of:
/s/ Lara Stegman /s/ Tom McMurrain (SEAL)
Witness Authorized Signature
Title:
/s/ Victoria Sasser /s/ Billy Bauman (SEAL)
Notary Public Authorized Signature
My Commission Expires: May 8, 2001 Title
Signed, sealed and
delivered in the
presence of:
/s/ Lara Stegman /s/ Billy Bauman (SEAL)
Witness By Landlord (or its
authorized agent)
/s/ Victoria Sasser
Notary Public
My Commission Expires: May 8, 2001
FOLLOWING EXECUTION, THE ORIGINAL AND ONE COPY HEREOF
SHALL BE RETURNED TO THE LANDLORD
NOTE: * If Tenant is a corporation, two authorized corporate officers
must execute this Lease in their appropriate capacity for
Tenant, affixing the corporate seal.
** Two witnesses are required, one of whom must be a notary
public, who must affix his notarial seal and stamp indicating
the expiration date of his commission.
RULES AND REGULATIONS
(Which are referred to the Within Lease
and Made a Part Thereof)
1. The sidewalk, entry passages, corridors, halls, elevators and
stairways shall not be obstructed by tenants, or used by them for any purpose
other than of ingress and egress.
2. The water closets and other water apparatus shall not be used for
any other purpose than those for which they were constructed, and no sweeping,
rubbish, or other obstructing substances shall be thrown therein.
3. No advertisement, sign or other notice ("sign") shall be inscribed,
painted or affixed on any part of the outside or inside of the Building without
the Lessor's express written consent to the sign and its location. Window
shades, blinds or, curtains of a uniform color and pattern only shall be used
throughout the Building to give a uniform color exposure through exterior
windows. No awnings shall be placed upon the Building.
4. No tenant shall do or permit to be done in Building, or bring or
keep anything thereon, which shall in any way obstruct or interfere with the
rights of other tenants, or in any part thereof, or conflict with any of the
rulers and ordinances of the Board of Health. Tenants, their invitees and
employees shall maintain order in the Building, shall not make or permit any
improper noise in Building or interfere in any way with other tenants or those
having business with them. No rooms shall be occupied or used as sleeping or
lodging apartments at any time without permission of Landlord. No part of
Building shall be used or in any way appropriated for gambling, immoral or other
unlawful practices. No intoxicating liquor or liquors shall be sold in Building
by Tenant without Landlord's permission.
5. Tenants shall not employ any persons other than the janitors of
Landlord (who will be provided with pass keys into the offices) for the purpose
of cleaning or taking care of Premises.
6. No animals, birds, bicycles, or other vehicles shall be allowed into
the offices, halls, corridors, elevators, or elsewhere in the Building.
7. All tenants and occupants shall observe strict care not to leave
their windows open when it rains or snows and for any fault or carelessness in
any of these respects, shall make good any injury substained by other tenants,
and to Landlord for damage to paint, plastering or other parts of Building
resulting from such default or carelessness. No painting shall be done, nor
shall any alterations be made, to any part of Building by painting up or
changing any particulars, doors or windows, nor shall there be any nailing,
boring, or screwing into the woodwork or plastering, nor shall any connection be
made to the electric wires or gas or electric fixtures, without the consent in
writing on each occasion of Landlord or its agent. All glass, locks and
trimmings in or upon the doors and windows of Building shall be kept whole, and
when any part thereof shall be broken, the same shall immediately be replaced or
repaired and put in order under the direction
and to the satisfaction of Landlord, or its agents, and shall be left whole and
in good repair. Tenants shall not deface Building, the woodwork or the walls of
the Premises.
8. Not more than two keys for each office (or the equivalent of one key
for each approximately 500 square feet) will be furnished tenants without
charge. Tenants shall not, under any circumstances, have any duplicate keys
made. No additional locks or latches shall be put upon any door without the
written consent of Landlord. Tenants, at the termination of their Lease of the
Premises shall return to Landlord all keys to doors in Building.
9. Landlord in all cases retains the power to prescribe the weight and
position of iron safes or other heavy articles. Tenants must make arrangements
with the superintendent of Building when the elevator is required for the
purpose of the carrying of any kind of freight.
10. If tenants require wiring for a bell or buzzer system, such wiring
shall be done by the electrician of Building only, and no outside wiring men
shall be allowed to do work of this kind unless by the written permission of
Landlord. If telegraphic or telephonic services are desired, the wiring for same
shall be done as directed by the electrician of Building or by some employee of
Landlord who may be instructed by the superintendent of Building to supervise
them, and no boring or cutting for wiring shall be done unless approved by
Landlord or its agents.
11. Parking facilities supplied by Landlord for tenants, if any, shall
be used for vehicles that may occupy a standard parking area only (i.e., 8' x
10'). Moreover, the use of such parking facilities shall be limited to normal
business parking and shall not be used for a continuous parking of any vehicle
or trailer regardless of size.
12. Landlord reserves all vending rights.
13. The Landlord shall not be responsible to any tenant for the
non-observance of violation of any of these Rules and Regulations by any other
tenants. The Landlord reserves the right to make such other reasonable rules and
regulations as in his judgment may from time to time be needed for the safety,
care and cleanliness of the premises, and for the preservation of good order
therein. Regulations shall be binding upon the parties hereto the same as if
they had been inserted at time of execution.
14. Comply with all laws, ordinances and regulations of the United
States and the State and County wherein the Premises lies, or any agencies
thereof, and further to comply with all recommendations of any public or private
agency having authority over insurance rates with respect to the use of
occupancy of the Premises by Tenant.
15. Landlord may require that automobiles owned by Tenant, its
licensees, concessionaires and employees be parked in specific portions of the
parking area.
16. Tenant shall not place or maintain merchandise or other articles in
any vestibule or entry of the Premises, on the sidewalks adjacent thereto, or
elsewhere in the exterior or common area.
17. Tenant shall not solicit business in the parking area or other
common areas.
18. Tenant shall not distribute handbills or other advertising matter
to, in or upon any automobiles parked in the parking areas or in any other
common area.
19. Tenant shall not use or permit the use of any apparatus for sound
reproduction or transmission, including, but not limited to, loud speakers,
phonographs, public address systems, sound amplifiers and radios, or any musical
instrument, in any manner that sounds so produced are audible or visible outside
the Premises.
20. Tenant shall not cause or permit the loading or unloading of
merchandise, supplies or other property outside the area designated therefor, or
permit the parking or standing outside of said area by delivery vehicles or
other vehicles or equipment engaged in loading or unloading.