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Exhibit 10.18
Congress Corporate Plaza, Building 3
Innovative Selective Software, Inc.
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Lease Drafted: July 2, 1992
LEASE AGREEMENT
THIS LEASE AGREEMENT, made and entered into by and between
Crow-Childress-▇▇▇▇▇▇, Limited, a Texas limited partnership ("Landlord"), and
Innovative Selective Software, Inc., an Illinois corporation ("Tenant"):
W I T N E S S E T H:
1.01 PREMISES. In consideration of the obligation of Tenant to pay rent and
of the other terms, provisions and covenants hereof, Landlord leases to Tenant
and Tenant leases from Landlord, all that portion of certain real property
situated within the County of Palm Beach, State of Florida, legally described in
Exhibit A, and the buildings and improvements to be constructed thereon as
outlined on the site plan contained in Exhibit B (the "Premises"), including any
truck loading areas specifically marked in red on said Exhibit B for the
exclusive use of Tenant. The Premises and the building within which the Premises
are located (the "Building") are part of a larger development (the
"Development") commonly known as Congress Corporate Plaza, Phase II.
2.01 TERM OF LEASE. The term of this lease shall commence on the "Rent
Commencement Date", as hereinafter defined, and ending 36 months thereafter,
provided however, that in the event the rent commencement date is a date other
than the first day of a calendar month, said term shall extend for said number
of months in addition to the remainder of the calendar month following the rent
commencement date.
2.02 RENT COMMENCEMENT DATE. The "Rent Commencement Date" shall be the date
that Tenant first uses the Premises or any portion thereof for any purpose
permitted under this lease. In the event this lease pertains to a building or
building interior finish to be constructed, the "Rent Commencement Date" shall
be the date upon which the buildings and other improvements erected and to be
erected upon the premises shall have been substantially completed in accordance
with the plans and specifications described on Exhibit "C" attached hereto and
incorporated herein by reference, provided however, that if Landlord shall be
delayed in such substantial completion as a result of: (i) Tenant's failure to
agree to plans, specifications, and cost estimates, within a reasonable period
of time; (ii) Tenant's request for materials, finishes or installations other
than Landlord's standard; (iii) Tenant's changes in plans: the commencement date
and the payment of rent hereunder shall be accelerated by the number of days of
such delay, and provided further that if Landlord cannot substantially complete
the premises as a result of any events (i) through (iii) above, Landlord may as
its election complete so much of Landlord's work as may be practical under the
circumstances and, by written notice to Tenant, establish the commencement date
as the date of such partial completion, subject to any applicable accelerations
due to delays resulting from events (i) through (iii) above. Taking possession
by Tenant shall be deemed conclusively to establish that said buildings and
other improvements have been completed in accordance with the plans and
specifications and that the premises are in good and satisfactory condition, as
of when possession was so taken. Tenant acknowledges that no representations as
to the repair of the premises have been made by Landlord, unless such are
expressly set forth in the lease. After such "Rent Commencement Date" Tenant
shall, upon demand, execute and deliver to Landlord a letter of acceptance of
delivery of the premises. In the event of any dispute as to substantial
completion of work performed, execute or required to be performed by Landlord,
the certificate of Landlord's architect or general contractor shall be
conclusive.
3.01 BASE RENT. Tenant agrees to pay to Landlord rent for the premises, in
advance, without demand, deduction or set off, for the entire term hereof at the
rate of * Dollars ($______) per month. One such monthly installment shall be
due and payable on the date hereof and a like monthly installment shall be due
and payable on or before the first day of each calendar month succeeding the
rent commencement date, except that the rental payment for any fractional
calendar month at the commencement of the lease period shall be prorated. The
rental payment is subject to adjustment as provided below.
3.02 RENT ESCALATION. [* See Attached Rider]
4.01 SECURITY DEPOSIT. Tenant agrees to deposit with Landlord on the date
hereof the sum of Five thousand two hundred dollars and no/00 Dollars
($5,200.00), which sum shall be held by Landlord, without obligation for
interest, as security for the full, timely and faithful performance of Tenant's
covenants and obligations under this Lease, it being expressly agreed that such
deposit is not an advance rental deposit or a measure of Landlord's damages.
Upon the occurrence of any event of default by Tenant, Landlord may, from
Landlord: ____________ Tenant: ____________
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time to time, without prejudice to any other remedy, use such funds to the
extent necessary to make good any arrears of rent or other payments due Landlord
hereunder, and any other damage, injury, expense or liability caused by Tenant's
default; and Tenant shall pay to Landlord on demand the amount so applied in
order to restore the security deposit to its original amount. Although the
security deposit shall be deemed the property of Landlord, any remaining balance
of such deposit shall be returned by Landlord at such time after termination of
this Lease when Landlord shall have determined that all Tenant's obligations
under this Lease have been fulfilled.
5.01 PERMITTED USE. The Premises shall be continuously used for the sole
purpose of general business offices and/or for receiving, storing, shipping and
selling (other than at retail) products, materials and merchandise made and/or
distributed by Tenant and for no other use or purpose. Tenant shall at its own
cost and expense obtain any and all licenses and permits necessary for any such
use. The overnight parking of automobiles, trucks or other vehicles, and the
outside storage of any property including trash or garbage are prohibited.
Tenant agrees that it shall, at its own cost and expenses keep its employees,
agents, customers, invitees, and/or licensees from parking on any streets
running through or contiguous to the buildings or development of which the
premises are part thereof. Tenant agrees that no washing of any type will take
place in the premises including the truck apron and parking areas. Tenant shall
not permit any objectionable or unpleasant odors, smoke, dust, gas, noise or
vibrations to emanate from the Premises, nor take any other action which would
constitute a nuisance or would disturb or endanger any other tenants of
Development or unreasonably interfere with such tenants' use of their respective
premises or permit any use which would adversely affect the reputation of the
Development. Tenant shall not receive, store or otherwise handle any product,
material or merchandise which is explosive, highly flammable or constitutes a
hazardous substance or waste. Tenant shall not permit the Premises to be used
for any purpose (including, without limitation, the storage of merchandise) in
any manner which would render the insurance thereon void or increase the
insurance rate thereof. Tenant agrees to indemnify and hold Landlord harmless
against any and all loss, costs and claims, including attorney's fees relating
to the improper storage, handling, transportation or disposal of explosive,
highly flammable or hazardous materials or resulting from any other improper
use. Tenant shall comply with all governmental laws, ordinances and regulations
applicable to the Premises, and shall promptly comply with all governmental
orders and directives for the correction, prevention and abatement of any
violations or nuisances in or upon, or connected with, the Premises, all at
Tenant's sole expense. If, as a result of any change in the governmental laws,
ordinances and regulations, the Premises must be altered to accommodate lawfully
the use and occupancy thereof, such alterations shall be made only with the
consent of Landlord, but the entire cost thereof shall be borne by Tenant;
provided that the necessity of Landlord's consent shall in no way create any
liability against Landlord for failure of Tenant to comply with such laws,
ordinances and regulations. Tenant shall take whatever other actions are
necessary so that the Premises and Tenant's use thereof complies with the Fire
Prevention Code of the National Fire Protection Association and any other fire
prevention laws, ordinances, rules or regulations applicable to the Premises.
6.01 TENANT'S TAXES. Tenant shall be responsible to pay before delinquency
all franchise taxes, assessments, levies or charges measured by or based in
whole or in part upon the rents payable hereunder or the gross receipts of
Tenant and all sales taxes and other taxes imposed upon or assessed by reason of
the rents and other charges payable hereunder. The Florida sales tax imposed on
rent and on other charges payable hereunder shall be paid by Tenant to Landlord
with the payment of Tenant's rental payments and other charges payable
hereunder.
7.01 DEFINITION OF OPERATING COSTS. The term "Operating Costs" shall mean
all costs and expenses paid or incurred by Landlord or on Landlord's behalf in
connection with the ownership, management, repair, replacement, remodeling,
maintenance and operation of the Development (including, without limitation, all
assessed real property taxes, assessments (whether general or special) and
governmental charges of any kind and nature whatsoever including assessments due
to deed restrictions and/or owner's associations, which accrue against the
building and/or development of which the premises are a part, the costs of
maintaining and repairing parking lots, parking structures, easements, and
landscaping, property management fees, utility costs to the extent not
separately metered, insurance premiums, depreciation of the costs of replacement
(as defined below) of the building and improvements in the Development but not
including any structural repairs or replacements which are normally chargeable
to capital accounts under sound accounting principles, and the Building's share
of costs of the Development). The term "operating costs" does not include: (i)
costs of alterations of tenants' premises; (ii) costs of curing construction
defects; (iii) interest and principal payments on mortgages, and other debt
cost; (iv) real estate brokers' leasing commissions or compensation; (v) any
cost or expenditure for which Landlord is reimbursed, whether by insurance
proceeds or otherwise; (vi) cost of any service furnished to any other occupant
of the Building which Landlord does not provide to tenant hereunder. Structural
repairs and replacements are repairs and replacements to the foundations,
load-bearing walls, columns and joists and replacement of roofing and roof deck.
Notwithstanding anything contained herein to the contrary, depreciation of any
capital improvements which are intended to reduce Operating Costs, or are
required under any governmental laws, regulations or ordinances which were not
applicable to the Building or the Development at the time it was constructed, or
are recommended by the N.F.P.A. Life Safety Code, shall be included in Operating
Costs. The useful life of any such improvement as well as all non-structural
replacements shall be reasonably determined by Landlord. In addition, interest
on the undepreciated cost of any such improvement or non-structural replacement
(at the prevailing construction loan rate available to Landlord on the date the
cost of such improvement was incurred) shall also be included in Operating
Costs. If Landlord selects the accrual method of accounting rather than the cash
accounting method for Operating Costs purposes, Operating Costs shall be deemed
to have been paid when such expenses have accrued. Landlord shall have the right
at any time and from time to time to elect, which election shall be subject to
revocation, to exclude that portion of Operating Costs attributable to any
separately assessed part of the Development and any separate building within the
Development. During any period that Operating Costs attributable to any
separately assessed part of the Development and/or separate building are so
excluded from Operating Costs, then for the purposes of calculating Tenant's
proportionate share of Operating Costs as provided in Section 7.02, the
denominator shall not include the rentable area of such separately assessed part
of the Development and/or such separate building. Landlord may, in a reasonable
manner, allocate insurance premiums for so-called "blanket" insurance policies
which insure other properties as well as the Development and said allocated
amount shall be deemed to be an Operating Cost.
If at any time during the term of this lease, the present method of
taxation shall be changed so that in lieu of the whole or any part of any taxes,
assessments or governmental charges levied, assessed or imposed on real estate
and the improvements thereon, there shall be levied, assessed or imposed on
Landlord a capital levy or other tax directly on the rents received therefrom
and/or a franchise tax, assessment, levy or charge measured by or based, in
whole or in part, upon such rents for the present or any future building or
buildings on the premises, then all such taxes, assessments, levies or charges,
or the part thereof so measured or based, shall be deemed to be included within
the term "taxes" for the purposes hereof.
7.02 TENANT'S PROPORTIONATE SHARE OF OPERATING COSTS. Tenant shall pay to
Landlord, as additional rent, its proportionate share of operating costs
calculated on the basis of the ratio set forth in Section 8.01. Any payments
with respect to any partial calendar year in which the Term commences or ends
shall be prorated. Tenant agrees to pay $1,250.00 per month per Paragraph 8.01
of this Lease as an escrow amount for operating costs as defined in Article
7.01. Landlord may, at any time, deliver to Tenant its estimate (or revised
estimate) of such additional amounts payable under this Section for each
calendar year. On or before the first day of the next month and on or before the
first day of each month thereafter, Tenant shall pay to Landlord as additional
rent such amount as Landlord reasonably determines to be necessary to bring and
keep Tenant current. As soon as practicable after the close of each calendar
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year, Landlord shall deliver to Tenant a statement showing the total amount
payable by Tenant under this Article. If such statement shows an amount due from
Tenant that is less than the estimated payments previously paid by Tenant, it
shall be accompanied by a refund of the excess to Tenant or at Landlord's option
the excess shall be credited against the next monthly installment of rent. If
such statement shows an amount due from Tenant that is more than the estimated
payments paid by Tenant, Tenant shall pay the deficiency to Landlord, as
additional rent. In the event an amount is due and is not paid within thirty
(30) days after the date of Landlord's statement to tenant, the unpaid amount
shall bear interest at the rate of eighteen (18%) percent per annum from the
date of such statement until payment by tenant. Landlord and Tenant acknowledge
that certain of the costs of management, operation and maintenance of the
Development are allocated among all of the buildings in the Development using
methods of allocation that are considered reasonable and appropriate under the
circumstances. Tenant hereby consents to such allocations provided that the
determination of such costs and the allocation of all or part thereof to
Operating Costs hereunder shall be in accordance with generally accepted
accounting principles applied on a consistent basis. Tenant or its'
representatives shall have the right after seven (7) days prior written notice
to Landlord to examine Landlord's books and records of Operating Costs during
normal business hours within twenty (20) days following the furnishing of the
statement to Tenant. Unless Tenant takes written exception to any item within
thirty (30) days following the furnishing of the statement to Tenant (which item
shall be paid in any event), such statement shall be considered as final and
accepted by Tenant. The taking of exception to any item shall not excuse Tenant
from the obligation to make timely payment based upon the statement as delivered
by Landlord.
8.01 TENANT'S PROPORTIONATE SHARE. (a) Tenants "proportionate share" as
used in this Lease with respect to the Building shall mean a fraction the
numerator of which shall be the rentable area contained in the Premises and the
denominator of which shall be the rentable area contained in the Building, as
determined by Landlord. Tenant's "proportionate share" as used in this Lease
with respect to costs relating to more than the Building, shall mean a fraction
the numerator of which shall be the rentable area which is 5,000 SF for year 1,
4,000 SF for year 2 and 8,345 square feet thereafter contained in the Premises
and the denominator of which shall be the rentable area of all buildings, as
determined by Landlord, within the Development. Notwithstanding anything
contained in the Lease to the contrary, Landlord shall have the right, from time
to time, to add or exclude from the Development real property and any buildings
constructed thereon. In the event Landlord elects to add to or exclude from the
Development, Landlord shall notify Tenant in writing of any such addition or
exclusion which notice shall describe the property added or excluded.
9.01 TENANT'S OBLIGATIONS. (a) Tenant shall at its own cost and expense
keep and maintain all parts of the Premises and such portion of the Development
within the exclusive control of Tenant in good condition, promptly making all
necessary repairs and replacements, whether ordinary or extraordinary, with
materials and workmanship of the same character, kind and quality as the
original, including but not limited to, windows, glass and plate glass, doors,
skylights, any special office entries, interior walls and finish work, floors
and floor coverings, heating and air conditioning systems, electrical systems
and fixtures, sprinkler systems, water heaters, dock board, truck doors, dock
bumpers, and plumbing work and fixtures. Tenant as part of its obligation
hereunder shall keep the whole of the Premises in a clean and sanitary
condition. Tenant will as far as possible keep all such parts of the Premises
from deteriorating, ordinary wear and tear excepted, and from falling
temporarily out of repair, and upon termination of this Lease in any way. Tenant
will yield up the Premises to Landlord in good condition and repair, loss by
fire or other casualty covered by insurance to be secured pursuant to Article 15
excepted (but not excepting any damage to glass or loss not reimbursed by
insurance because of the existence of a deductible under the appropriate
policy). Tenant shall not damage any demising wall or disturb the integrity and
supports provided by any demising wall and shall, at its sole cost and expense,
properly repair any damage or injury to any demising wall caused by Tenant or
its employees, agents or invitees. Tenant shall, at its own cost and expense, as
additional rent, pay for the repair of any damage to the Premises, the Building,
or the Development resulting from and/or caused in whole or in part by the
negligence or misconduct of Tenant, its agents, servants, employees, patrons,
customers, or any other person entering upon the Development as a result of
Tenant's business activities or caused by Tenant's default hereunder.
(b) Tenant at its own cost and expense, enter into a regularly scheduled
preventive maintenance/service contract with a maintenance contractor approved
by Landlord, for servicing all heating and air conditioning systems and
equipment servicing the Premises and an executed copy of such contract shall be
delivered to Landlord. This service contract must include all services suggested
by the equipment manufacturer within the operations/maintenance manual and must
become effective within thirty (30) days of the date Tenant takes possession of
the Premises. Landlord may (but shall not be required to), upon notice to
Tenant, elect to enter into such a maintenance service contract on behalf of
Tenant or perform the work itself and, in either case, charge Tenant therefore,
together with a reasonable charge for overhead.
9.02 LANDLORD'S OBLIGATIONS. Landlord shall maintain in good repair,
reasonable wear and tear and any casualty covered by the provisions of Article
15 excepted, all parts of the Development, other than tenants' demised premises
or portions of the Development within the exclusive control of tenants of the
Development, making all necessary repairs and replacements, whether ordinary or
extraordinary structural or nonstructural, including roof, foundation, walls,
downspouts, gutters, regular mowing of any grass, trimming, weed removal and
general landscape maintenance, including any rail spur areas, exterior painting,
exterior lighting, exterior signs and common sewage plumbing and the maintenance
of all paved areas including driveways and alleys, including, but not limited
to, cleaning, repaving, restripping and resealing. Tenant shall immediately give
Landlord written notice of any defect or need for repairs, after which Landlord
shall have a reasonable opportunity to repair the same or cure such defect.
Landlord's liability with respect to any defects, repairs or maintenance for
which Landlord is responsible under any of the provisions of this Lease shall be
limited to the cost of such repairs or maintenance or the curing of such defect.
The term "walls" as used herein shall not include windows, glass or plate glass,
doors, special store front or office entry.
10.01 ALTERATIONS. Tenant shall not make any alterations, additions or
improvements to the Premises (including, without limitation, the roof and wall
penetrations) without the prior written consent of Landlord. If Landlord shall,
consent to any alterations, additions or improvements proposed by Tenant, Tenant
shall construct the same in accordance with all governmental laws, ordinances,
rules and regulations and all requirements of Landlord's and Tenant's insurance
policies and only in accordance with plans and specifications approved by
Landlord; and any contractor or person selected by Tenant to make the same, or,
at Landlord's option and discretion, the alterations, additions or improvements
shall be made by Landlord for Tenant's account and Tenant shall fully reimburse
Landlord for the entire cost thereof. Tenant may, without the consent of
Landlord, but at its own cost and expense and in good workmanlike manner erect
such shelves, bins, machinery and other trade fixtures as it may deem advisable,
without altering the basic character of the Building or Development and without
overloading the floor or damaging such Building or Development, and in each case
after complying with all applicable governmental laws, ordinances, regulations
and other requirements. All shelves, bins, machinery and trade fixtures
installed by Tenant may be removed by Tenant prior to the termination of this
Lease if Tenant so elects, and shall be removed by the date of termination of
this Lease or upon earlier vacating of the Premises if required by Landlord;
upon any such removal Tenant shall restore the Premises to their original
condition. All such removals and restoration shall be accomplished in a good and
workmanlike manner so as not to damage the primary structure or structural
quality of the Building.
11.01 SIGNS AND WINDOW TREATMENT. Tenant shall not install any signs upon
the Building or Development. Landlord will provide, at Tenant's request and
cost, Landlord's standard identification sign, which sign shall be removed by
Tenant upon termination of this Lease at which time Tenant shall restore the
property to the same condition as prior to installation of said sign. Tenant
shall not install drapes, curtains, blinds or any window treatment without
Landlord's prior written consent. Landlord may from time to time require Tenant
to change its signage to conform to a revised standard for the Building,
provided Landlord pays
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the cost of removing and replacing such signs. Landlord shall maintain all
signs and the cost thereof shall be charged to the Tenant.
12.01 INSPECTIONS. Landlord and Landlord's agents and representatives
shall have the right to enter and inspect the premises at any reasonable time
during business hours, for the purpose of ascertaining the condition of the
premises or in order to make such repairs as may be required or permitted to be
made by Landlord under the terms of this lease. During the period that is six
(6) months prior to the end of the term hereof, Landlord and Landlord's agents
and representatives shall have the right to enter the premises at any
reasonable time during business hours for the purpose of showing the premises
and shall have the right to erect on the premises a suitable sign indicating
the premises are available. Tenant shall give written notice to Landlord at
least thirty (30) days prior to vacating the premises and shall arrange to meet
with Landlord for a joint inspection of the premises prior to vacating. In the
event of Tenant's failure to give such notice or arrange such joint inspection,
Landlord's inspection at or after Tenant's vacating the premises shall be
conclusively deemed correct for purposes of determining Tenant's responsibility
for repairs and restoration.
13.01 UTILITIES. Tenant shall pay for all gas, heat, light, power,
telephone, and other utilities and services used on or from the Premises,
including without limitation, Tenant's proportionate share as determined by
Landlord for the use of such utilities which are not separately metered and any
central station signaling system installed in the Premises or the Building,
together with any taxes, penalties and surcharges or the like pertaining
thereto and any maintenance charges for utilities. Tenant shall furnish and
install all electric light bulbs, tubes and ballasts, other than those
originally provided to the Premises by Landlord. Landlord shall in no event be
liable for any interruption or failure of utility services on or to the
Premises.
14.01 ASSIGNMENT AND SUBLETTING. (a) Tenant shall not have the right to
assign, sublet, transfer or encumber this lease, or any interest therein,
without the prior written consent of Landlord. Any attempted assignment,
subletting, transfer or encumbrance by Tenant in violation of the terms and
covenants of this Paragraph shall be void. All cash or other proceeds of any
assignment, such proceeds as exceed the rentals called for hereunder in the case
of a subletting and all cash or other proceeds of any other transfer of Tenant's
interest in this lease shall be paid to Landlord, whether such assignment,
subletting or other transfer is consented to by landlord or not, unless Landlord
agrees to the contrary in writing, and Tenant hereby assigns all rights it might
have or ever acquire in any such proceeds to Landlord. Any assignment,
subletting or other transfer of Tenant's interest in this lease shall be for an
amount equal to the then fair market value of such interest. These covenants
shall run with the land and shall bind Tenant and Tenant's heirs, executors,
administrators, personal representatives, representatives in any bankruptcy
proceeding, successors and assigns. Any assignee, sublessee or transferee of
Tenant's interest in this lease (all such assignees, sublessees and transferees
being hereinafter referred to as "successors"), by assuming Tenant's obligations
hereunder shall assume liability to Landlord for all amounts paid to persons
other than Landlord by such successors in contravention of this Paragraph. No
assignment, subletting or other transfer, whether consented to by Landlord or
not, shall relieve Tenant of its liability hereunder. Upon the occurrence of an
"event of default" as hereinafter defined, if the premises or any part thereof
are then assigned or sublet, Landlord, in addition to any other remedies herein
provided, as provided by law, may at its option collect directly from such
assignee or subtenant all rents becoming due to Tenant under such assignment or
sublease and apply such rent against any sums due to Landlord for Tenant
hereunder, and no such collection shall be construed to constitute a novation or
a release of Tenant from the further performance of Tenant's obligations
hereunder.
(b) If this lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code 11 U.S.C. 101 et seq., (The "Bankruptcy
Code"), any and all monies or other considerations payable or otherwise to be
delivered in connection with such assignment shall be paid or delivered to
Landlord, shall be and remain the exclusive property of Landlord and shall not
constitute property of Tenant or of the estate of Tenant within the meaning of
the Bankruptcy Code. Any and all monies or other considerations constituting
Landlord's property under the preceding sentence not paid or delivered to
landlord shall be held in trust for the benefit of the Landlord and be promptly
paid or delivered to Landlord.
(c) Any person or entity to which this lease is assigned pursuant to the
provisions of the Bankruptcy Code, shall be deemed, without further act or
deed, to have assumed all of the obligations arising under this lease on and
after the date of such assignment. Any such assignee shall upon demand execute
and deliver to Landlord an instrument confirming such assumption.
15.01 FIRE AND CASUALTY DAMAGE. (a) Landlord agrees to maintain
insurance covering the building of which the premises are a part in an amount
not less than eighty (80%) percent (or such greater percentage as may be
necessary to comply with the provisions of any co-insurance clauses of the
policy) of the replacement cost thereof, insuring against the perils of Fire,
Lightning, Extended Coverage, Vandalism and Malicious Mischief, extended by
Special Extended Coverage Endorsement to insure against all other Risks of
Direct Physical Loss, such coverages and endorsements to be as defined,
provided and limited in the standard bureau forms prescribed by the insurance
regulatory authority for the state in which the premises are situated for use
by insurance companies admitted in such state for the writing of such insurance
on risks located within such state. Subject to the provisions of subparagraphs
15.01(c), 15.01(d), and 15.01(e) below, such insurance shall be for the sole
benefit of Landlord and under its sole control.
(b) If the building situated upon the premises should be damaged or
destroyed by fire, tornado or other casualty, tenant shall give written notice
thereof to Landlord.
(c) If the buildings situated upon the premises should be totally
destroyed by fire, tornado or other casualty, or if they should be so damaged
thereby that rebuilding or repairs cannot in Landlord's estimation be completed
within two hundred (200) days after the date upon which Landlord is notified by
Tenant of such damage, this lease shall terminate and the rent shall be abated
during the unexpired portion of this lease, effective upon the date of the
occurrence of such damage.
(d) If the buildings situated upon the premises should be damaged by any
peril covered by insurance to be provided by Landlord under subparagraph
15.01(a) above, but only to such extent that rebuilding or repairs can in
Landlord's estimation be completed within two hundred (200) days after the date
upon which Landlord is notified by Tenant of such damage, this lease shall not
terminate, and Landlord shall at its sole cost and expense thereupon proceed
with reasonable diligence to rebuild and repair such buildings to substantially
the condition in which they existed prior to such damage, except that Landlord
shall not be required to rebuild, repair or replace any part of the partitions,
fixtures, additions and other improvements which may have been placed in, on or
about the premises by Tenant and except that Tenant shall pay to Landlord upon
demand any amount by which Landlord's cost of such rebuilding, repair and/or
replacement exceeds net insurance proceeds paid to Landlord in connection with
such damage and except that Landlord may elect not to rebuild if such damage
occurs during the last year of the term of the lease exclusive of any option
which is unexercised at the time of such damage. If the premises are
untenantable in whole or in part following such damage, the rent payable
hereunder during the period in which they are untenantable shall be reduced to
such extent as may be fair and reasonable under all of the circumstances. In
the event that Landlord should fail to complete such repairs and rebuilding
within two hundred (200) days after the date upon which Landlord is notified by
Tenant of such damage, Tenant may at its option terminate this lease by
delivering written notice of termination to Landlord as Tenant's exclusive
remedy, whereupon all rights and or obligations hereunder shall cease and
terminate. Should construction be delayed because of changes, deletions, or
additions in construction requested by Tenant, strikes, lockouts, casualties,
acts of God, war, material or labor shortages, governmental regulation or
control or other causes beyond the reasonable control of Landlord, the period
of restoration, repair or rebuilding shall be extended for the time Landlord is
so delayed.
(e) Notwithstanding anything herein to the contrary, in the event the
holder of any indebtedness secured by a mortgage or deed of trust covering the
premises requires that the insurance proceeds be applied to such indebtedness,
then Landlord shall have the right to terminate this lease by delivering
written notice of termination to Tenant within fifteen (15) days after such
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requirement is made by any such holder, whereupon all rights and obligations
hereunder shall cease and terminate.
(f) Each of Landlord and Tenant hereby releases the other from any loss
or damage to property caused by fire or any perils insured in policies of
insurance covering such property, even if such loss or damage shall have been
caused by the fault or negligence of the other party, or anyone for whom such
party may be responsible; provided, however, that this release shall be
applicable and in force and effect only with respect to loss or damage
occurring during such times as the releasor's policies shall contain a clause
or endorsement to the effect that any such release shall not adversely affect
or impair said policies or prejudice the right of the releasor to recover
thereunder and then only to the extent of the insurance proceeds payable under
such policies. Each of the Landlord and Tenant agrees that it will request its
insurance carriers to include in its policies such a clause or endorsement.
16.01 LIABILITY. Landlord shall not be liable to Tenant or Tenant's
employees, agents, patrons or visitors, or to any other person whomsoever, for
any injury to person or damage to property on or about the premises, resulting
from and/or caused in part or whole by the negligence or misconduct of Tenant,
its agents, servants or employees of any other person entering upon the
premises, or caused by the buildings and improvements located on the premises
becoming out of repair, or caused by leakage of gas, oil, water or steam or by
electricity emanating from the premises, or due to any cause whatsoever, and
Tenant hereby covenants and agrees that it will at all times indemnify and hold
safe and harmless the property, the Landlord (including without limitation the
trustee and beneficiaries if Landlord is a trust). Landlord's agents and
employees from any loss, liability, claims, suits, costs, expenses, including
without limitation attorney's fees and damages, both real and alleged, arising
out of any such damage or injury; except injury to persons or damage to property
the sole cause of which is the gross negligence of Landlord or the failure of
Landlord to repair any part of the premises which Landlord is obligated to
repair and maintain hereunder within a reasonable time after the receipt of
written notice from Tenant of needed repairs. Tenant shall procure and maintain
throughout the term of the lease a policy or policies of insurance, at its sole
cost and expense, insuring both Landlord and Tenant against all claims, demands
or actions arising out of or in connection with (i) the premises; (ii) the
condition of the premises; (iii) Tenant's operations in and maintenance and use
of the premises; and (iv) Tenant's liability assumed under this lease, the
limits of such policy or policies to be in the amount of not less than
$2,000,000 per occurrence in respect to injury to persons (including death), and
in the amount of not less than $250,000 per occurrence in respect to property
damage or destruction, including loss of use thereof. All such policies shall be
procured by Tenant from responsible insurance companies satisfactory to
Landlord. Certified copies of such policies, together with receipt evidencing
payment of premiums therefore, shall be delivered to Landlord prior to the
commencement date of this lease. Not less than fifteen (15) days prior to the
expiration date of any such policies, certified copies of the renewal thereof
(bearing notations evidencing the payment of renewal premiums) shall be
delivered to Landlord. Such policies shall further provide that not less than
thirty (30) days written notice shall be given to Landlord before such policy
may be cancelled or changed to reduce insurance provided thereby.
17.01 CONDEMNATION. (a) If the whole or any substantial part of the
Premises or Building should be taken for any public or quasi-public use under
governmental law, ordinance or regulation, or by right of eminent domain, or by
private purchase in lieu thereof and the taking would prevent or materially
interfere with the use of the Premises or Building for the purpose for which
they are then being used, this Lease shall terminate effective when the legal
taking shall occur as if the date of such taking were the date originally fixed
in the Lease for the expiration of the Term.
(b) If the part of the Premises or Building shall be taken for any public
or quasi-public use under governmental law, ordinance or regulation, or by
right of eminent domain, or by private purchase in lieu thereof, and this Lease
is not terminated as provided above, this Lease shall not terminate but the
rent payable hereunder during the unexpired portion of this Lease shall be
reduced to such extent as may be fair and reasonable under all of the
circumstances and Landlord shall undertake to restore the Premises to a
condition suitable for Tenant's use, as near to the condition thereof
immediately prior to such taking as is reasonably feasible under all the
circumstances.
(c) In the event of any such taking or private purchase in lieu thereof,
Landlord and Tenant shall each be entitled to receive and retain such separate
awards and/or portion of lump sum awards as may be allocated to their
respective interests in any condemnation precedings; provided that Tenant shall
not be entitled to receive any award for the loss of any improvements paid for
by Landlord or for Tenant's loss of its leasehold interest, the right to such
award as to such items being hereby assigned by Tenant to Landlord.
18.01 HOLDING OVER. Tenant will, at the termination of this lease by lapse
of time or otherwise, yield up immediate possession to Landlord with all repairs
and maintenance required herein to be performed by Tenant completed. If Landlord
agrees in writing that Tenant may hold over after the expiration or termination
of this lease, unless the parties hereto otherwise agree in writing on the terms
of such holding over, the hold over tenancy shall be subject to termination by
Landlord at any time upon not less than (5) days advance written notice, or by
Tenant at any time upon not less than thirty (30) days advance written notice,
and all of the other terms and provisions of this lease shall be applicable
during that period, except that Tenant shall pay Landlord from time to time upon
demand, as rental for the period of any hold over, an amount equal to double the
rent in effect on the termination date, computed on a daily basis for each day
of the hold over period. Tenant shall also pay to Landlord all damages sustained
by Landlord resulting from retention of possession by Tenant, including the loss
of any proposed subsequent tenant for any portion of the Premises. No holding
over by Tenant, whether with or without consent of Landlord, shall operate to
extend this lease except as otherwise expressly provided. The preceding
provisions of this paragraph shall not be construed as consent for Tenant to
hold over.
19.01 QUIET ENJOYMENT. Landlord represents and warrants that it has full
right and authority to enter into this Lease and that Tenant, upon paying the
rental herein set forth and performing its other covenants and agreements herein
set forth, shall peaceably and quietly have, hold and enjoy the Premises for the
Term without hindrance or molestation from Landlord, subject to the terms and
provisions of this Lease. Landlord agrees to make reasonable efforts to protect
Tenant from interference or disturbance by other tenants or third persons;
however, Landlord shall not be liable for any such interference or disturbance,
not shall Tenant be released from any of the obligations of this Lease because
of such interference or disturbance. In the event this Lease is a sublease, then
Tenant agrees to take the Premises subject to the provisions of the prior lease.
20.01 EVENTS OF DEFAULT. The following events shall be deemed to be
events of default by Tenant under this lease:
(a) Tenant shall fail to pay any installment of the rent herein reserved
when due, or any other payment or reimbursement to Landlord required herein
when due and such failure shall continue for a period of five (5) days from the
date such payment was due.
(b) Tenant or any guarantor of Tenant's obligations hereunder shall
generally not pay its debts as they become due or shall admit in writing its
inability to pay its debts or shall make a general assignment for the benefit
of creditors; or Tenant or any such guarantor shall commence any case,
proceeding or other action seeking to have an order for relief entered on its
behalf as a debtor to adjudicate it as bankrupt or insolvent, or seeking
reorganization or relief of debtors or seeking appointment of a receiver,
trustee, custodian or other similar official for it or for all or of any
substantial part of its property; or Tenant or any such guarantor shall take
any action to authorize or in contemplation of any of the actions set forth
above in this paragraph; or
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(c) Any case, proceeding or other action against Tenant or any guarantor
of Tenant's obligations hereunder shall be commenced seeking to have an order
for relief entered against it as debtor or to adjudicate it as bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, liquidation,
dissolution or composition of it or its debts under any law relating to
bankruptcy, insolvency, reorganization or relief of debtors, or seeking
appointment of a receiver, trustee, custodian or other similar official for it
or for all or any substantial part of its property.
(d) A receiver or trustee shall be appointed for all or substantially all
of the assets of the Tenant.
(e) Tenant shall desert or vacate any substantial portion of the premises.
(f) Tenant shall fail to discharge any lien placed upon the premises in
violation of Paragraph 26.01 hereof within twenty (20) days after any such lien
or encumbrance is filed against the premises.
(g) Tenant shall fail to comply with any term, provision or covenant of
this lease (other than the foregoing in this Paragraph 20.01, and shall not
cure such failure within twenty (20) days after written notice thereof to
Tenant.
(h) Tenant shall fail to continuously operate its business at the
premises for the permitted use set forth in Paragraph 5.01 whether or not
Tenant is in default of the rental payment due under this lease.
20.02 REMEDIES. (a) Upon the occurrence of any of such events of default
described in Paragraph 20.01 hereof, Landlord shall have the option to pursue
any one or more of the following remedies without any notice or demand
whatsoever:
(1) Terminate this lease, in which event Tenant shall immediately
surrender the premises to Landlord, and if Tenant fails so to do,
Landlord may, without prejudice to any other remedy which it may have
for possession or arrearages in rent, enter upon and take possession
of the premises and expel or remove Tenant and any other person who
may be occupying such premises or any part thereof, by force if
necessary, without being liable for prosecution or any claim of
damages therefore.
(2) Enter upon and take possession of the premises and expel or remove
Tenant and any other person who may be occupying such premises or any
part thereof, by force if necessary, without being liable for
prosecution or any claim for damages therefore, and relet the premises
and receive the rent therefore.
(3) Enter upon the premises, by force if necessary, without being liable
for prosecution or any claim for damages therefore, and do whatever
Tenant is obligated to do under the terms of this lease; and Tenant
agrees to reimburse Landlord on demand for any expenses which Landlord
may incur in thus effecting compliance with Tenant's obligations under
this lease, and Tenant further agrees that Landlord shall not be
liable for any damages resulting to the Tenant from such action,
whether caused by the negligence of Landlord or otherwise.
(4) Alter all locks and other security devices at the premises without
terminating this lease.
(b) In the event Landlord may elect to regain possession of the premises
by a forcible detainer proceeding, Tenant hereby specifically waives any
statutory notice which may be required prior to such proceeding, and agrees
that Landlord's execution of this lease is, in part, consideration for this
waiver.
(c) In the event Tenant fails to pay any installment of rent hereunder as
when such installment is due, to help defray the additional cost to Landlord for
processing such late payments Tenant shall pay to Landlord on demand a late
charge in an amount equal to give (5%) percent of such installment; and the
failure to pay such amount within five (5) days after demand therefore shall be
an event of default hereunder. The provision for such late charge shall be in
addition to all of Landlord's other rights and remedies hereunder or at law
and shall not be construed as liquidated damages or as limiting Landlord's
remedies in any manner.
(d) In the event Tenant's check, given to Landlord in payment, is returned
by the bank for non-payment, Tenant agrees to pay all expenses incurred by
Landlord as a result thereof.
(e) Exercise by Landlord of any one or more remedies hereunder granted or
otherwise available shall not be deemed to be an acceptance of surrender of the
premises by Tenant, whether by agreement or by operation of law, it being
understood that such surrender can be effected only by the written agreement of
Landlord and Tenant. No such alteration of locks or other security devices and
no removal or other exercise of dominion by Landlord over the property of Tenant
or others at the premises shall be deemed unauthorized or constitute a
conversion, Tenant hereby consenting, after any event of default, to the
aforesaid exercise of dominion over Tenant's property within the premises. All
claims for damages by reason of such re-entry and/or repossession and/or
alteration of locks or other security devices are hereby waived, as are all
claims for damages by reason of any distress warrant, forcible detainer
proceedings, sequestration proceedings or other legal process. Tenant agrees
that any re-entry by Landlord may be pursuant to judgment obtained in forcible
detainer proceedings or other legal proceedings or without the necessity for any
legal proceedings, as Landlord may elect, and Landlord shall not be liable for
trespass or otherwise.
(f) In the event Landlord elects to terminate the lease by reason of an
event of default, then notwithstanding such termination, Tenant shall be liable
for and shall pay to Landlord, at the address specified for notice to Landlord
herein, the sum of all rental and other indebtedness accrued to date of such
termination, plus, as damages, an amount equal to the greater of (i) the total
rental hereunder for the remaining portion of the lease term (had such term not
been terminated by Landlord prior to the date of expiration and (ii) the then
present value of the then fair rental value of the premises for such period.
(g) In the event that Landlord elects to repossess the premises without
terminating the lease, or in the event Landlord elects to terminate the lease,
then Tenant at Landlord's option, shall be liable for and shall pay to
Landlord, at the address specified for notice to Landlord herein, all rental and
other indebtedness accrued to the date of such repossession, plus rental
required to be paid by Tenant to Landlord during the remainder of the lease term
until the date of expiration of the term as stated in Section 3.01 diminished
by any net sums thereafter received by Landlord through reletting the premises
during said period (after deducting expenses incurred by Landlord as provided
in subparagraph 20.02(h). In no event shall Tenant be entitled to any excess of
any rental obtained by reletting over and above the rental herein reserved.
Actions to collect amounts due by Tenant to Landlord under this subparagraph
may be brought from time to time, on one or more occasions, without the
necessity of Landlord's waiting until expiration of the lease term.
(h) In case of any evenly of default or breach by Tenant, or threatened or
anticipatory breach or default, Tenant shall also be liable for and shall pay to
Landlord, at the address specified for notice to Landlord herein, in addition to
any sum provided to be paid above, brokers' fees incurred by Landlord in
connection with reletting the whole or any part of the premises; the costs of
removing and storing Tenant's or other occupant's property; the costs of
repairing, altering, remodeling or otherwise putting the premises into condition
acceptable to a new tenant or tenants, and all reasonable expenses incurred by
Landlord in enforcing or defending Landlord's rights and/or remedies including
reasonable attorney's fees.
(i) In the event of termination or repossession of the premises for an
event of default, Landlord shall not have any obligation to relet or to attempt
to relet the premises, or any portion thereof, or to collect rental after
reletting; and in the event of reletting, Landlord may relet the whole or any
portion of the premises for any period to any tenant and for any use and
purpose.
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(j) If Tenant should fail to make any payment or cure any default
hereunder within the time herein permitted, Landlord, without being under any
obligations to do so and without thereby waiving such default, may make such
payment and/or remedy such other default for the account of Tenant (and enter
the premises for such purpose), and thereupon Tenant shall be obligated to, and
hereby agrees, to pay Landlord upon demand, all costs, expenses and
disbursements (including reasonable attorney's fees) incurred by Landlord in
taking such remedial action.
(k) In the event that Landlord shall have taken possession of the premises
pursuant to the authority herein granted then Landlord shall have the right to
keep in place and use all of the furniture, fixtures and equipment at the
premises, including that which is owned or leased to Tenant at all times prior
to any foreclosure thereon by Landlord or repossession thereof by any lessor
thereof or third party having a lien thereon, Landlord shall also have the right
to remove from the premises (without the necessity of obtaining a distress
warrant, writ of sequestration or other legal process) all or any portion of
such furniture, fixtures, equipment and other property located thereon and to
place same in storage at any premises within the County in which the premises is
located; and in such event, Tenant shall be liable to Landlord for costs
incurred by Landlord in connection with such removal and storage. Landlord shall
also have the right to relinquish possession of all or any portion of such
furniture, fixtures, equipment and other property to any person ("Claimant")
claiming to be entitled to possession thereof who presents to Landlord a copy of
any instrument represented to Landlord by Claimant to have been executed by
Tenant (or an predecessor 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 of said instrument's copy of Tenant's or Tenant's predecessor's
signature(s) thereon and without the necessity of Landlord making any nature of
investigation or inquiry as to the validity of the factual or legal basis upon
which Claimant purports to act; and Tenant agrees to indemnify and hold Landlord
harmless from all cost, expense, loss, damage and liability incident to
Landlord's relinquishment of possession of all or any portion of such furniture,
fixtures, equipment or other property to Claimant. Any and all property which
may be removed from the Premises by Landlord pursuant to the authority of this
Lease or of Law, to which Tenant is or may be entitled, may be handled, removed
and stored, as the case may be, by or at the direction of Landlord at the risk,
cost and expense of Tenant, and Landlord shall in no event be responsible for
the value, preservation or safekeeping thereof. Tenant shall pay to Landlord,
upon demand any and all expenses incurred in such removal and all storage
charges against such property so long as the same shall be in Landlord's
possession or under Landlord's control. Any such property of Tenant not retaken
by Tenant from storage within thirty (30) days after the removal from the
Premises shall conclusively be presumed to have been conveyed by Tenant to
Landlord under this Lease as a ▇▇▇▇ of sale without further payment or credit by
Landlord to Tenant. The rights of Landlord herein stated shall be in addition to
any and all other rights which Landlord has or may hereafter have at law or in
equity; and Tenant stipulates and agrees that the rights herein granted Landlord
are commercially reasonable.
21.01 RIGHTS RESERVED TO LANDLORD. Landlord reserves and may exercise
the following rights without affecting Tenant's obligations hereunder:
(a) To change the name or the street address of the Building or
the Development;
(b) To install and maintain a sign or signs on the exterior of
the Building;
(c) To designate all sources furnishing sign painting and
lettering, lamps and bulbs used on the Premises;
(d) To retain at all times pass keys to the Premises;
(e) To grant to anyone the exclusive right to conduct any
particular business or undertaking in the Building or the
Development;
(f) To change the arrangement and/or location of entrances and
corridors in and to the Building and to add, remove, rename
or modify buildings, roadways, parking areas, walkways,
landscaping, lakes, grading and other improvements in or to
the Development.
22.01 (intentionally omitted)
23.01 LANDLORD'S LIEN. In addition to any statutory lien for rent in
Landlord's favor, Landlord shall have and Tenant hereby grants to Landlord a
continuing security interest for all rentals and other sums of money becoming
due hereunder from Tenant, upon all goods, wares, equipment, fixtures,
furniture, inventory, accounts, contract rights, chattel paper and other
personal property of Tenant situated on the Premises, and such property shall
not be removed therefrom without the consent of Landlord until all arrearages
in rent as well as any and all other sums of money then due to Landlord
hereunder shall first have been paid and discharged. In the event of a default
under this Lease, Landlord shall have, in addition to any other remedies
provided herein or by law, all rights and remedies under the Uniform Commercial
Code, including without limitation the right to sell the property described in
this Section at public or private sale upon five (5) days notice to Tenant.
Tenant hereby agrees to execute such financing statements and other instruments
necessary or desirable in Landlord's discretion to perfect the security interest
hereby created.
24.01 SUBORDINATION. Tenant accepts this Lease subject and subordinate
to any mortgage and/or deed of trust now or at any time hereafter constituting a
lien or charge upon the Development, the Building, or the Premises, without the
necessity of any act or execution of any additional instrument of subordination;
provided, however, that if the mortgagee, trustee, or holder of any such
mortgage or deed of trust elects to have Tenant's interest in this Lease
superior to any such instrument, then by notice to Tenant from such mortgagee,
trustee or holder, this Lease shall be deemed superior to such lien, whether
this Lease was executed before or after said mortgage or deed of trust. Tenant
shall at any time hereafter on demand execute any instruments, releases or other
documents which may be required by any mortgagee for the purpose of evidencing
the subjection and subordination of this Lease to the lien of any such mortgage
or for the purpose of evidencing the superiority of this Lease to the lien of
any such mortgage as may be the case.
25.01 MECHANICS LIENS AND OTHER TAXES. (a) Tenant shall have 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 the interests of
Landlord in the premises or to charge the rentals payable hereunder 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, and each
such claim shall affect and each such lien shall attach to, if at all, only the
leasehold interest granted to Tenant by this instrument. Tenant covenants and
agrees that it will pay or cause to be paid all sums legally due and payable by
it on account of any labor performed or materials furnished in connection with
any work performed on the premises on which any lien is or can be validly and
legally asserted against its leasehold interest in the premises or the
improvements thereon and that it will save and hold Landlord harmless from any
and all loss, cost or expense based on or arising out of asserted claims or
liens against the leasehold estate or against the right, title and interest of
the Landlord in the premises or under the terms of this lease. Tenant agrees to
give Landlord immediate written notice if any lien or encumbrance
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is placed on the premises.
(b) Tenant shall be liable for all taxes levied or assessed against
personal property, furniture or fixtures placed by Tenant in the premises. If
any such taxes for which Tenant is liable are levied or assessed against
Landlord or Landlord's property and if Landlord elects to pay the same or if
the assessed value of Landlord's property is increased by inclusion of personal
property, furniture or fixtures placed by Tenant in the premises, and Landlord
elects to pay the taxes based on such increase, Tenant shall pay to Landlord
upon demand that part of such taxes.
26.01 NOTICES. Each provision of this instrument or of any applicable
governmental laws, ordinances, regulations and other requirements with
reference to the sending, mailing or delivery of any notice or the making of
any payment shall be deemed to be complied with when and if the following steps
are taken:
(a) All rent and other payments required to be made by Tenant to Landlord
shall be payable to: TCAC - Crow-Childress-▇▇▇▇▇▇, Limited or to such other
entity at the such other address as Landlord may specify from time to time
by written notice delivered in accordance herewith.
(b) Any notice or document required or permitted to be delivered hereunder
shall be deemed to be delivered, whether actually received or not, when
deposited in the United States Mail, postage prepaid, Certified or Registered
Mail, 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:
LANDLORD: TENANT:
Crow-Childress-▇▇▇▇▇▇, Limited Innovative Selective Software, Inc.
c/o ▇▇▇▇▇▇▇▇ ▇▇▇▇ Company ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
If and when included within the term "Landlord", or "Tenant", as used in
this instrument, there is more than one person, firm or corporation, all shall
jointly arrange among themselves for their joint execution of such a notice
specifying some individual at some specific address for the receipt of notices
and payments. All parties included within the terms "Landlord" and "Tenant",
respectively, shall be bound by notices given in accordance with the provisions
of this paragraph to the same effect as if each had received such notice.
27.01 MISCELLANEOUS. (a) Words of any gender used in this Lease shall be
held or construed to include any other gender, and words in the singular number
shall be held to include the plural, unless the context otherwise requires.
(b) The terms, provisions and covenants and conditions contained in this
Lease shall apply to, inure to the benefit of, and be binding upon, the parties
hereto and upon their respective heirs, legal representatives, successors and
permitted assigns, except as otherwise herein expressly provided. Landlord
shall have the right to assign any of its rights and obligations under this
Lease and Landlord's grantee or Landlord's successor, as the case may be, shall
upon such assignment, become Landlord hereunder, thereby freeing and relieving
the grantor or assignor, as the case may be, of all covenants and obligations
of Landlord hereunder. Each party agrees to 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. Nothing herein contained shall give any other
tenant in the Development or the Building any enforceable rights either against
Landlord or Tenant as a result of the covenants and obligations of either party
set forth herein. If there is more than one Tenant, the obligations of Tenant
shall be joint and several. Any indemnification of, insurance of, or option
granted to Landlord shall also include or be exercisable by Landlord's agents
and employees.
(c) The captions inserted in this Lease are for convenience only and in no
way define, limit or otherwise describe the scope or intent of this Lease, or
any provision hereof, or in any way affect the interpretation of this Lease.
(d) In no event shall Landlord's liability for any breach of this Lease
exceed the amount of rental then remaining unpaid for the then current Term
(exclusive of any renewal periods which have not then actually commenced). This
provision is not intended to be a measure or agreed amount of Landlord's
liability with respect to any particular breach and shall not be utilized by
any court or otherwise for the purpose of determining any liability of Landlord
hereunder, except only as a maximum amount not to be exceeded in any event. In
addition, it is expressly understood and agreed that nothing in this Lease
shall be construed as creating any liability against Landlord, or its
successors and assigns, personally, and in particular without limiting the
generality of the foregoing, there shall be no personal liability to pay any
indebtedness accruing hereunder or to perform any covenant, either express or
implied, herein contained, and that all personal liability of Landlord, or its
successors and assigns, of every sort, if any, is hereby expressly waived by
Tenant, and that so far as Landlord, or its successors and assigns is concerned
Tenant shall look solely to the Building for the payment thereof.
(e) Except as set forth in Section 8.01 above, 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 not fully performed as of the expiration or
earlier termination of the term of this Lease shall survive the expiration or
earlier termination of the Term, including without limitation, all payment
obligations with respect to Operating Costs and all obligations concerning the
condition of the Premises. Upon the expiration or earlier termination of the
Term, and prior to Tenant vacating the Premises, Landlord and Tenant shall
jointly inspect the Premises and Tenant shall pay to Landlord any amount
estimated by Landlord as necessary to put the Premises, including without
limitation heating and air conditioning systems and equipment therein, in good
condition and repair. Any work required to be done by Tenant prior to its
vacation of the Premises which has not been completed upon such vacation, shall
be completed by Landlord and billed to Tenant at cost plus fifteen percent.
Tenant shall also, prior to vacating the Premises, pay to Landlord the amount,
as estimated by Landlord, of Tenant's obligation hereunder for Operating Costs.
All such amounts shall be used and held by Landlord for payment of such
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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 shall
be credited against the amount payable by Tenant under this Section.
(g) If any clause, provision or portion of this Lease or the
application thereof to any person or circumstance shall be invalid or
unenforceable under applicable law, such event shall not affect, impair or
render invalid or unenforceable the remainder of this Lease nor any other
clause, phrase, provision or portion hereof, nor shall it affect the
application of any clause, phrase, provision or portion hereof to other
persons or circumstances, and it is also the intention of the parties to
this Lease that in lieu of each such clause, phrase, provision or portion
of this Lease that is invalid or unenforceable, there be added as a part of
this Lease a clause, phrase, provision or portion as similar in terms to
such invalid or unenforceable clause, phrase, provision or portion as may
be possible and be valid and enforceable.
(h) Submission of this Lease shall not be deemed to be a reservation
of the Premises. Landlord shall not be bound hereby until its delivery to
Tenant of an executed copy hereof signed by Landlord, already having been
signed by Tenant, and until such delivery Landlord reserves the right to
exhibit and lease the Premises to other prospective tenants.
Notwithstanding anything contained herein to the contrary Landlord may
withhold delivery of possession of the Premises from Tenant until such time
as Tenant has paid to Landlord the security deposit required hereunder and
the first month's rent as required hereunder, and any other sums required
hereunder.
(i) Tenant shall at any time and from time to time within ten (10)
days after written request from Landlord, execute and deliver to Landlord
an estoppel certificate, in form reasonable satisfactory to Landlord.
(j) Whenever a time period is prescribed for action to be taken by
Landlord, Landlord shall not be liable or responsible for, and there shall
be excluded from the computations for any such time period, any delays due
to causes beyond the control of Landlord.
(k) Radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health
risks to persons who are exposed to it over a time. Levels of radon that
exceed federal and state guidelines have been found in buildings in
Florida. Additional information regarding radon and radon testing may be
obtained from your county public health unit. The above statement is
incorporated in the lease as a requirement in order to comply with Florida
Statute 404.056(8).
(1) ATTACHED HERETO AND MADE PART OF THIS LEASE IS A RIDER TO LEASE.
28.01 EFFECTIVE DATE. 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.
The parties intending to be bound hereby execute or cause this Lease to
be executed this 4th day of August, 1992.
WITNESSES: LANDLORD: Crow-Childress-▇▇▇▇▇▇, Limited,
a Texas limited partnership
/s/ ▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
------------------------ -----------------------------------
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇▇, Agent
------------------------
Agent
---------------------------------------
Title:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ TENANT: Innovative Selective Software, Inc.,
------------------------ an Illinois corporation
/s/ ▇▇▇▇▇ Colecik
------------------------
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
President
---------------------------------------
Title:
9
10
RIDER TO THE LEASE AGREEMENT BETWEEN
CROW-CHILDRESS-▇▇▇▇▇▇, LIMITED, A
TEXAS LIMITED PARTNERSHIP, ("LANDLORD") AND
INNOVATIVE SELECTIVE SOFTWARE, INC.,
A ILLINOIS CORPORATION ("TENANT")
FOR PREMISES AT:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
29.01 Base Rent: The base rental rate as defined in Paragraph 3.01 of
the lease will be as follows:
Months Annual Base Rent Monthly Base Rent
1-12 $37,302.15 $3,108.51
13-24 $38,421.21 $3,201.77
25-36 $39,573.85 $3,297.82
30.01 Tenant Improvements: Landlord agrees to construct only once in
building standard materials the following improvements more
accurately shown on Exhibit "C":
1. In Room 122 Landlord will add a 8' base cabinet with sink.
2. In Room 115 Landlord will create a classroom with door as
shown on Exhibit "C".
3. In Room 118 Landlord will remove one door and the partition
in the middle of the room.
4. In Room 119 Landlord will remove the partition in the
middle of the room.
5. In Rooms 120 and 121 Landlord will construct a partition.
6. In Room 140 Landlord will move the door between Room 142
and 140 and Landlord will demo all other walls.
7. In Room 142 Landlord will demo all walls to create a
storage area.
8. Landlord will paint the entire premises.
9. Landlord will ensure that tenants electric and A/C is
properly divided and that there is sufficient A/C throughout
the tenants space.
10. Landlord will add double glass doors in storage room and
enlarge walkway.
11. Landlord will add two closets in hallway.
12. Landlord will add glass windows 4' x 6' in Rooms 120 and
121.
13. Landlord will create a larger reception area by demolishing
two walls.
These are the only improvements to be completed. These are shown
on Exhibit "C" attached.
31.01 ▇▇▇▇▇ ▇▇▇▇▇▇ agrees to provide Landlord with a personal
guarantee for an amount equal to the entire lease term.
11
RIDER TO THE LEASE AGREEMENT BETWEEN
CROW-CHILDRESS-▇▇▇▇▇▇, LIMITED, A
TEXAS LIMITED PARTNERSHIP, ("LANDLORD") AND
INNOVATIVE SELECTIVE SOFTWARE, INC.,
A ILLINOIS CORPORATION ("TENANT")
FOR PREMISES AT:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
32.01 American Disability Act: Tenant, at Tenant's sole expense, shall comply
with all laws, rules, orders, ordinances, directions, regulations and
requirements of federal, state, county and municipal authorities now in
force or which may hereafter be in force, which shall impose any duty
upon the Landlord or Tenant with respect to the use, occupation or
alteration of the premises.
33.01 Acceptance of Premises. Tenant acknowledges that it has inspected the
premises, knows the condition thereof, and accepts such premises, and
specifically the buildings and improvements comprising the same, in their
present condition, as suitable for the purposes for which the premises
are leased. Taking of possession by Tenant shall be deemed conclusively
to establish that said buildings and other improvements are in good and
satisfactory condition as of when possession was taken. Tenant further
acknowledges that no representations as to the repair of the premises,
nor premises to alter, remodel or improve the premises have been made by
Landlord, unless such are expressly set forth in this lease. If this
lease is executed before the premises becomes vacant or otherwise
available and ready for occupancy, of if any present tenant or occupant
of the premises holds over, and Landlord cannot, using good faith
efforts, acquire possession of the premises prior to the date above
recited as the commencement date of this lease, Landlord shall not be
deemed to be in default hereunder, nor in any way liable to Tenant
because of such failure, and Tenant agrees to accept possession of the
premises at such time as Landlord is able to tender the same, which date
shall thenceforth be deemed the "commencement date"; and the term of this
lease shall automatically be extended so as to include the full number of
months hereinbefore provided for, except that if the commencement date is
other than the first day of calendar month, such term shall also be
extended for the remainder of the calendar month in which possession is
tendered. Landlord hereby waives payment of rent covering any period
prior to such tendering of possession. After the commencement date,
Tenant shall, upon demand, execute and deliver to Landlord a letter of
acceptance of delivery of the premises.
34.01 Tenant agrees to relocate out of Suite 276 upon five days written notice
from Landlord. Tenant agrees to leave Suite 276 in clean, good repair
and move-in condition. After vacating Suite 276, Tenant agrees to lease
and take possession of Suite 230 and have the lease on Suite 230 commence
immediately upon taking possession of Suite 230. Upon taking possession
of Suite 230, Landlord and Tenant agree to release each other from any
and all obligations they have with respect to Suite 276 provided Tenant
is not in default and Tenant has left Suite 276 in the condition
prescribed in this paragraph.
12
RIDER TO THE LEASE AGREEMENT BETWEEN
CROW-CHILDRESS-▇▇▇▇▇▇, LIMITED, A
TEXAS LIMITED PARTNERSHIP, ("LANDLORD") AND
INNOVATIVE SELECTIVE SOFTWARE, INC.,
A ILLINOIS CORPORATION ("TENANT")
FOR PREMISES AT:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
35.01 Security Deposit: Supplementing Section 4.01 of the Lease, the Security
Deposit will be $5,020.00. The tenant is required to deposit with
Landlord the additional funds of $3,330.00 over their existing
security deposit of $1,690.00.
36.01 In the common area maintenance, all Landlord controllable expenses
will be capped at a 5% increase per year on a cumulative basis. This
includes all common area maintenance expenses except property taxes,
utilities and trash removal.
The parties intending to be bound hereby execute or cause this Rider to be
executed this 4th day of August, 1992.
ATTEST/WITNESS LANDLORD
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ Crow-Childress-▇▇▇▇▇▇, Limited,
----------------- a Texas limited partnership
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇ ▇▇▇▇▇▇
----------------- -----------------
Title: Agent
-----------------
ATTEST/WITNESS TENANT
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Innovative Selective Software,
----------------- Inc.
By: /s/ ▇▇▇▇▇ Colecik By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------- -----------------
Title: President
-----------------
▇▇
▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇
EXHIBIT A
LEGAL DESCRIPTION
Approximately 8,345 square feet of office and/or warehouse space located in a
building containing approximately 53,022 square feet situated on a portion of
approximately 9.49 acres on a parcel of land lying in ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇, ▇▇▇▇▇ 43 East and being more particularly described as ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ as shown in Exhibit B. Further described as
Congress Corporate Plaza, Phase II situated within a development known as
Congress Corporate Plaza containing of approximately 106,044 square feet.
14
EXHIBIT B
[ARCHITECTURAL DESIGN OF SPACE]
15
EXHIBIT C
[ARCHITECTURAL DESIGN OF SPACE]
16
EXHIBIT D
(OMITTED)
17
EXHIBIT E
ENVIRONMENTAL MATTERS
(1) TENANT'S COVENANTS REGARDING HAZARDOUS MATERIALS.
(A) COMPLIANCE WITH ENVIRONMENTAL LAWS. Tenant shall at all times and in
all respects comply with all federal, state and local laws, ordinances and
regulations ("Hazardous Materials Laws") relating to industrial hygiene,
environmental protection or the use, analysis, generation, manufacture,
storage, presence, disposal or transportation of any oil, flammable explosives,
asbestos, urea formaldehyde, radioactive materials or waste, or other
hazardous, toxic, contaminated or polluting materials, substances or wastes,
including, without limitations, any "hazardous substances," "hazardous wastes,"
"hazardous materials" or "toxic substances" under any such laws, ordinances or
regulations (collectively, "Hazardous Materials").
(B) HAZARDOUS MATERIALS HANDLING. Tenant shall at its own expense procure,
maintain in effect and comply with all conditions of any and all permits,
licenses and other governmental and regulatory approvals required for Tenant's
use of the Premises, including, without limitation, discharge of (appropriately
treated) materials or wastes into or through any sanitary sewer serving the
Premises. Except as discharged into the sanitary sewer in strict accordance and
conformity with all applicable Hazardous Materials Laws, Tenant shall cause any
and all Hazardous Materials removed from the Premises to be removed and
transported solely by duly licensed haulers to duly licensed facilities for
final disposal of such materials and wastes. Tenant shall in all respects
handle, treat, deal with and manage any and all Hazardous Materials in, on under
or about the Premises in total conformity with all applicable Hazardous
Materials Laws and prudent industry practices regarding management of such
Hazardous Materials. All reporting obligations imposed by Hazardous Materials
Laws are strictly the responsibility of Tenant. Upon expiration or earlier
termination of the term of the Lease, Tenant shall cause all Hazardous Materials
to be removed from the Premises and transported for use, storage or disposal in
accordance and compliance with all applicable Hazardous Materials Laws. Tenant
shall not take any remedial action in response to the presence of any Hazardous
Materials in or about the Premises or any Building, nor enter into any
settlement agreement, consent decree or other compromise in respect to any
claims relating to any Hazardous Materials in any way connected with the
Premises or Building, without first notifying Landlord of Tenant's intention to
do so and affording Landlord ample opportunity to appear, intervene or otherwise
appropriately assert and protect Landlord's interest with respect thereto. In
addition, at Landlord's request, Tenant shall remove any tanks or fixtures which
contain or contained, or are contaminated with Hazardous Materials.
(C) NOTICES. Tenant shall immediately notify Landlord in writing of: (i)
any enforcement, cleanup, removal or other governmental or regulatory action
instituted, completed or threatened pursuant to any Hazardous Materials Laws;
(ii) any claim made or threatened by any person against Tenant, the Premises or
Building relating to damage, contribution, cost recovery compensation, loss or
injury resulting from or claimed to result from any Hazardous Materials; and
(iii) any reports made to any environmental agency arising out of or in
connection with any Hazardous Materials; and (iv) any reports made to any
environmental agency arising out of or in connection with any Hazardous
Materials in, on or removed from the Premises or Building, including any
complaints, notices, warnings, reports or asserted violations in connection
therewith. Tenant shall also supply to Landlord as promptly as possible, and in
any event within five (5) business days after Tenant first receives or sends
the same, with copies of all claims, reports, complaints, notices, warnings or
asserted violations relating in any way to the Premises, Building or Tenant's
use thereof. Tenant shall promptly deliver to Landlord copies of hazardous
waste manifests reflecting the legal and proper disposal of all Hazardous
Materials removed from the Premises.
18
(2) Indemnification of Landlord. Tenant shall indemnify, defend (by
counsel acceptable to Landlord), protect, and hold Landlord, and each of
Landlord's partners, employees, agents, attorneys, successors, and assigns, free
and harmless from and against any and all claims, liabilities, penalties,
forfeitures, losses or expenses (including attorneys' fees) for death of or
injury to any person or damage to any property whatsoever (including water
tables and atmosphere), arising from or caused in whole or in part, directly or
indirectly, by (A) the presence in, on, under or about the Premises or Building
or discharge in or from the Premises or Building of any Hazardous Materials or
Tenant's use, analysis, storage, transportation, disposal, release, threatened
release, discharge or generation of Hazardous Materials to, in, on, under, about
or from the Premises or Building, or (B) Tenant's failure to comply with any
Hazardous Materials Law whether knowingly or unknowingly, the standard herein
being one of strict liability. Tenant's obligations hereunder shall include,
without limitation, and whether foreseeable or unforeseeable, all costs of any
required or necessary repair, cleanup or detoxification or decontamination of
the Premises or Building, and the preparation and implementation of any closure,
remedial action or other required plans in connection therewith, and shall
survive the expiration or earlier termination of the term of the Lease. For
purposes of the release and indemnity provision hereof, any acts or omissions of
Tenant, or by employees, agents, assignees, contractors or subcontractors of
Tenant or others acting for or on behalf of Tenant (whether or not they are
negligent, intentional, willful or unlawful) shall be strictly attributable to
Tenant.
(3) Additional Insurance or Financial Capacity. If at any time it
reasonably appears to Landlord that Tenant is not maintaining sufficient
insurance or other means of financial capacity to enable Tenant to fulfill its
obligation to Landlord hereunder, whether or not then accrued, liquidated,
conditional or contingent, Tenant shall procure and thereafter maintain in full
force and effect such insurance or other form of financial assurance, with or
from companies or persons and in forms reasonably acceptable to Landlord, as
Landlord may from time to time reasonably request. Landlord may procure such
insurance if Tenant fails to meet its obligation hereunder and the cost thereof
shall be passed through to Tenant.
(4) Environmental Audit; Right of Entry. Landlord shall have the right to
require Tenant to undertake and submit to Landlord a periodic environmental
audit from an environmental company approved by Landlord, which audit shall
cover Tenant's compliance with this Section. Tenant shall promptly comply with
all requirements of such audit and cure all matters raised therein at Tenant's
sole cost.
(5) Radon Gas - Radon is a naturally occurring radioactive gas that, when
it has accumulated in a building in sufficient quantities, may present health
risks to persons who are exposed to it over time. Levels of radon that exceed
federal and state guidelines have been found in buildings in Florida. Additional
information regarding radon and radon testing may be obtained from your county
public health unit.
The above statement is incorporated in the lease as a requirement in order
to comply with Florida Statute 404.056(8).