Georgia-Atlanta-2550 Heritage Court NW Lease - P & T Properties LLC and Direct Sales International LP
LEASE AGREEMENT
BETWEEN
P & T PROPERTIES, L.L.C.
LESSOR
AND
DIRECT SALES INTERNATIONAL, L.P.
LESSEE
FOR OFFICE SPACE AT
HERITAGE PLAZA
<PAGE> 2
STATE OF: Georgia
COUNTY OF: Cobb
THIS LEASE AGREEMENT, dated this day of
, 19 , by and between P & T Properties, L.L.C.
whose address for purposes hereof is Suite 106, 2550 Heritage Court, N.W.
Atlanta, Georgia 30339 (hereinafter called "Lessor"), and Direct Sales
International, L.P. whose address for purposes hereof is Suite 106, 2550
Heritage Court, N.W. Atlanta, Georgia 30339 (hereinafter called "Lessee"):
WITNESSETH:
PREMISES
DESCRIPTION OF
PREMISES 1. Subject to and upon the terms, provisions and
conditions herein set forth, Lessor does hereby lease,
demise, and rent to the Lessee and the Lessee does
hereby lease, demise and rent from the Lessor the
following described space in
located in LL 879, 17th District, 2nd Section of Cobb
County, Georgia as shown in Exhibit B attached hereto
and as further described below:
19,564 square feet of office space located on the first
floor of the above described office building.
ACCEPTANCE OF
PREMISES 2. Lessor or Lessor's agents have made no
representations or promises with respect to the said
building, leased premises, or this Agreement except as
herein expressly set forth. The taking possession of the
leased premises by Lessee shall be conclusive evidence,
as against Lessee, that Lessee accepts same "as is" and
that said premises and the building of which the same
form a part are suited for the use intended by Lessee
and were in good and satisfactory condition at the time
such possession was so taken.
TERM
TERM 3. Subject to and upon the conditions set forth
herein, or in any exhibit or addendum hereto, this Lease
shall continue in force for a term of approx. five (5)
years, beginning, at midnight, on the 30th day of
September, 1996, and ending, at midnight, on the
day of September 30, 2001, unless sooner
terminated as herein provided.
COMMENCEMENT 4. The date on which possession of the leased premises
is taken by Lessee will establish the commence of rent
on this Lease if possession is taken before the 15th
day of October, 1996. If for any reason Lessor fails to
deliver the leased premises ready for occupancy on the
above date, this Lease shall remain in full force and
effect and Lessor shall have no liability to Lessee due
to delay in occupancy and rental shall commence when
said premises are ready for occupancy. If a delay in
having premises ready for occupancy is occasioned by
Lessee, or leased premises are ready for occupancy on
the above date but Lessee does not take occupancy,
rental in either case will commence as of the above
date.
SURRENDER OF PREMISES 5. Upon the expiration or other termination of this
Lease, Lessee shall quit and surrender to Lessor the
premises, broom clean, in the same condition as at the
commencement of the term, natural wear and tear only
excepted, and Lessee shall remove all of its property.
Lessee's obligation to observe or perform this covenant
shall survive the expiration or other termination of
this Lease. If the last day of the term of this Lease or
any renewal thereof falls on Sunday, this Lessee shall
expire on the business day immediately preceding.
<PAGE> 3
RENT
MONTHLY RENT 6. As consideration for this Lease and the services to
be provided herein by Lessor, Lessee shall pay to Lessor
at its offices as stated above or at such other place as
Lessor shall designate in writing to Lessee, promptly on
the first day of each month, in advance, during the term
of this Lease, a monthly base rental of Twenty-two
Thousand, Eight Hundred twenty-four & 67/100
Dollars ($22,824.67) (the "Base Rental"), except as
otherwise provided herein.
ESCALATION OF BASE
RENTAL 7. Lessor and Lessee agree that the amount of the Base
Rental payable under this Lease shall be increased
during the term of this Lease in the manner hereinafter
provided as soon as practicable after January 1 of each
year during the term of this Lease (such dates being
hereinafter collectively called "Adjustment Dates") to
reflect any increase in the costs of goods and services
necessary to the operation and maintenance of the
building in which the leased premises is located. On the
first Adjustment Date (as soon as practicable after
January 1, 1997), Lessor shall provide Lessee a copy of
the Consumer Price Index for All Urban Consumers, U.S.
City Average for All Items (1967=100) published by the
Bureau of Labor Statistics of the U.S. Department of
Labor (hereinafter referred to as the "Index") for the
month of December, 1995, and for the month of December,
1996 If the Index for the Month of December, 1996, is
greater than the Index for December, 1995, Lessee shall
also receive a notice from Lessor showing the amount of
the monthly Base Rental for the calendar year 1997. Said
monthly Base Rental for 1997 shall be computed by
multiplying the monthly Base Rental by a fraction, the
denominator of which shall be the Index for December,
1995 and the numerator of which shall be the Index for
December, 1996. On each subsequent Adjustment Date
during the term of this Lease, Lessee shall receive the
Index for the month of December of the immediately
preceding calendar year (the "Current Index") and the
Index for the month of December of this calendar year
one year prior to the immediately preceding calendar
year ("Last Year's Index"). If the Current Index is
greater than Last Year's Index, the Monthly Base Rental
then in effect shall be increased for the current
calendar year and succeeding years, retroactively to
January 1, of such current calendar year, to an amount
computed by multiplying the then Base Rental (inclusive
of any prior adjustment) by a fraction, the denominator
of which shall be the Last Year's Index and the
numerator of which shall be the Current Index. In no
event shall the Base Rental, as increased in accordance
herewith, be decreased or adjusted downwards. If the
Index shall no longer be published or cannot, following
any change in the base year thereof, be appropriately
adjusted, then another Index recognized as authoritative
shall be substituted therefor by Lessor. Within ten (10)
days after each Adjustment Date or as soon as practical
Lessor shall provide new rental amount to Lessee. Lessee
shall make immediate payment to Lessor of such amount
being the increase in Base Rental and continue paying
the new monthly rental until the next adjustment period.
ADDITIONAL RENTAL 8. All payments, other than those previously specified
above, as required in this Lease by Lessee to Lessor
shall be deemed to be and shall become additional rent
hereunder, whether or not the same shall be designated
as such, and shall be due and payable along with usual
rental payments subject to the same conditions and
remedies as exist for said rental payments.
SECURITY DEPOSIT 9. Prior to occupancy, Lessee will pay to Lessor as a
security deposit, the amount of None Dollars ($-0-)
Such deposit is refundable to Lessee within 30 days
following satisfactory completion of all the terms of
this Lease and provided that no defective conditions,
other than normal wear and tear, are left unrepaired by
Lessee and that Lessee does not owe Lessor any debts.
Any portion of said deposit not required to reimburse
Lessor for Lessor's expense in repairing defective
conditions caused by Lessee or for paying amounts owed
by Lessee to Lessor, shall be refunded to the Lessee as
provided above.
LATE CHARGES 10. Any rental due Lessor under this Lease shall be
considered past due for purposes hereof 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 Lessor under this
Lease, with the exception of rent, shall be considered
past due 30 days from Lessor'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%.)
<PAGE> 4
ALTERATIONS
LESSEE'S ALTERATIONS 11. Lessee hereby agrees that prior to the commencement
of alterations to premises by a contractor other than
Lessor's, Lessor shall approve in writing said
alterations to be made and said contractor hired to
perform said alterations. Any alterations so made shall
be of a quality equal to or exceeding building standard.
Lessor hereby reserves the right to require said
contractor to provide lien waivers and liability
insurance covering said alterations to be performed and
such other instruments as may be necessary to protect
Lessor in such instances. Upon termination of the Lease,
all erections, additions, alterations, fixtures and
improvements, whether temporary or permanent in
character (excepting Lessee's moveable trade fixtures
and office furniture removed in compliance with
Paragraph 20 of the Lease) made in or upon the leased
premises, either by the Lessee or the Lessor, shall be
the Lessor's property and shall remain upon said
premises without any compensation to Lessee.
PROVIDED BY LESSOR
SERVICES OF LESSOR 12. The Lessor hereby covenants that it will, without
charge, at the proper season, during reasonable hours
(8:00 A.M. to 6:00 P.M., Mondays through Fridays and
Saturdays from 8:00 A.M. to 1:00 P.M.) furnish electric
current, air conditioning and heat in its judgment
sufficient to reasonably cool or heat the premises,
cessation caused by strike, accident or reasonable
necessity excepted. Lessor will also cause the leased
premises (except where the same consist of retail space)
to be cleaned and generally cared for by its janitor in
accordance with the standards of the building, cessation
caused by strike, accident or reasonable necessity
excepted. Lessor will also pay the water rate for water
reasonably used on the leased premises. It will also
furnish electric current to the leased premises for
lighting and business machine purposes only, such as
electric typewriters, adding and small calculating
machines. Electric current and installation for
electronic data processing type equipment shall be at
the cost of the Lessee. In no event shall the Lessor be
liable for damages from the stopping of service or for
any of the fixtures or equipment in said building being
out of repair, or for injury to persons or property
caused by any defects in the heating, electric, air
conditioning equipment or water apparatus, or for any
damages arising out of the failure to furnish said
heating or air conditioning, water, janitor service or
electric current. Lessor shall provide a reasonable
amount of parking area, without charge, for Lessee's
employees and visitors in areas, as are designated by
Lessor from time to time, in the vicinity of the
building in which the leased premises are situated. In
the event the Lessee utilizes the services provided by
Lessor as specified in this Paragraph in amounts or for
periods in excess of that provided herein, or in the
event the Lessee utilizes electric current or other
utilities in excess of the amount which would be
typically utilized by a normal business office use of
the leased premises, then the Lessor shall have the
right to charge Lessee as additional rent a reasonable
sum as reimbursement for the direct cost of such
additional use or services. In the event of a
disagreement at the reasonableness of the amount of such
additional rent, the opinion of a qualified local
independent professional engineer selected by Lessor
shall be binding upon Lessor and Lessee.
REPAIRS BY LESSOR 13. Lessor shall have no duty to Lessee to make any
repairs or improvements to the leased premises except
structural repairs necessary for safety and
tenantability, and then only if not brought about by any
act or neglect of Lessee, its agents, employees or
visitors. The Lessor shall not be liable to the Lessee
for any damage caused to the Lessee and its property due
to the building or any part or appurtenances thereof
being improperly constructed or being or becoming out of
repair, or arising from the leaking of gas, water, sewer
or steam pipes, or from electricity. Lessee agrees to
report immediately in writing to Lessor any defective
condition in or about the leased premises known to
Lessee, and a failure to so report shall make Lessee
liable to Lessor for any expense or damage to any
property, at any time, in said leased premises or
building, from gas, smoke, water, rain, ice, or snow,
which may leak into, issue or form from any part of said
building of which the premises hereby leased are part,
or from the pipes of plumbing work of the same, or from
any other place or quarter.
<PAGE> 5
REGARDING LESSEE'S USE OF PREMISES
USE OF PREMISES 14. The premises shall be used and occupied by Lessee
solely for the purpose of office space, unless other
uses are specifically stated and authorized herein. The
premises shall not be used for any illegal purpose nor
in violation of any valid regulation of any governmental
body, not in any manner to create any nuisance or
trespass.
QUIET ENJOYMENT 15. If Lessee shall pay the rent reserved herein and
other amounts to be paid by Lessee to Lessor, and well
and faithfully keep, perform and observe all of the
covenants, agreements and conditions herein stipulated
to be kept, performed and observed by Lessee, Lessee
shall at all times during the term of this Lease have
the peaceable and quiet enjoyment of said premises
without hindrance of Lessor or any person lawfully
claiming under Lessor, subject, however, to the terms of
this Lease and any mortgage provided for in Paragraph
30.
ASSIGNMENT AND
SUBLETTING 16. Lessee may not, without the prior written consent
of Lessor and after first offering to return the
premises to Lessor, assign this Lease or any interest
thereunder, or sublet the premises or any part thereof,
or permit the use of the premises by any party other
than the Lessee. Consent to one assignment or sub-lease
shall not destroy or waive this provision and all later
assignments and sub-leases shall likewise be made only
upon the prior written consent of the Lessor.
Sub-tenants or Assignees shall become liable to the
Lessor for all obligations of the Lessee hereunder,
without relieving the Lessee's liability hereunder. No
assignment or subletting shall apply or be permitted
other than during the initial term of this Lease.
Options or extensions, if any, are available exclusively
to Lessee.
REPAIRS BY LESSEE 17. Lessee shall, at its own expense, keep and maintain
the said premises and appurtenances and every part
thereof in good order and repair except portions of the
premises to be repaired by Lessor as provided herein.
The Lessee shall make no alterations in, or additions to
the premises without first obtaining in writing the
Lessor's written consent for such alterations or
additions, which shall be at the sole cost of the
Lessee. Any such alterations, additions or improvements
which shall be made by either Lessor or Lessee and
attached to the premises, including carpet, shall be the
property of Lessor and shall remain upon and be
surrendered with the premises as a part thereof at the
termination of this Lease, without disturbance,
molestation, or injury.
PROPERTY OF LESSEE 18. Lessee may (if not in default hereunder) prior to
the expiration of this Lease, or any extension thereof,
remove all moveable trade fixtures and office furniture
which it has placed in the leased premises, provided
Lessee repairs all damages to the leased premises caused
by such removal; provided, however, that the Lessor
shall have at all times a valid first lien for all
rentals and other sums of money to become due hereunder
from the Lessee and to secure the performance by the
Lessee of each and all of the covenants, agreements and
conditions hereof, upon all of the personal property of
the said Lessee situated in the leased premises, and
said property shall not be removed therefrom without the
consent of the Lessor until all arrearages in rent as
well as any and all other sums of money to become due
hereunder shall first have been paid and discharged and
until this Lease and all of the covenants, agreements
and conditions hereof have been fully performed by
Lessee, provided further that the lien herein granted
may be foreclosed in the manner and form provided by law
for the foreclosure of chattel mortgages or in any other
manner provided by law. The statutory lien for rent is
not waived, the express contractual lien herein granted
being in addition and supplementary thereto. If the
Lessee shall fail to remove all effects from said leased
premises upon termination of this Lease for any cause
whatsoever, Lessor may at its option remove the same in
any manner that the Lessor shall choose, store said
effects without liability to the Lessee for loss
thereof, and the Lessee agrees to pay the Lessor on
demand any and all expenses incurred in such removal,
including court costs and attorney fees and storage
charges on such effects for any length of time the same
shall be in the Lessor's possession, or the Lessor may
at its option without notice sell said effects or any
part of the same at the private sale and without legal
process for such price as the Lessor may obtain, and
apply the proceeds of such sale upon any amounts due
under this Lease from the Lessee to the Lessor and upon
the expense incident to the removal and sale of said
effects.
<PAGE> 6
DAMAGE OR THEFT OF
PERSONAL PROPERTY 19. Lessee agrees that all personal property brought
into the premises shall be at the risk of the Lessee
only and that the Lessor shall not be liable for theft
thereof or any damage thereto occasioned from any acts
of co-tenants, or other occupants of said building or
any other person.
GENERAL LIABILITY
OF LESSEE 20. The Lessee agrees to indemnify and hold the Lessor
harmless from any injury, expense, damages or claims,
whether due to damage to the premises, claims for
injuries to the person or property of any other tenant
of the building or of any other person rightfully in or
about said building for any purpose whatsoever, or
administrative or criminal action by a governmental
authority, where such injury, expense, damages or claims
result either directly or indirectly from the
negligence, misconduct or breach of any provision of
this Lease by the Lessee, his agent, servants, or
employees, or of any other persons entering upon the
leased premises under express or implied invitation of
the Lessee. The Lessee further agrees to reimburse the
Lessor for any costs or expenses, including attorney's
fees, which the Lessor may incur in investigating,
handling or litigating any such claim by a third person
or any action by a governmental authority.
ABANDONMENT OF
PREMISES 21. Lessee agrees not to abandon or vacate the leased
premises during the period of this Lease without the
prior written approval of Lessor.
RE-LETTING BY LESSOR 22, Lessor, as Lessee's agent, without terminating this
Lease, upon Lessee's breaching this contract, inclusive
of abandonment, may at Lessor's option enter upon and
rent the leased premises at the best price obtainable by
reasonable effort, without advertisement and by private
negotiations and for any term Lessor deems proper.
Lessee shall be liable to Lessor for the deficiency, if
any, between Lessee's rent hereunder and the price
obtained by Lessor on re-letting.
HOLDING OVER 23. In the event of holding over by Lessee subsequent
to the expiration or other termination of this Lease and
without regard to Lessor's acquiescence or consent,
Lessee shall pay as liquidated damages a monthly rent
double the monthly rent payable immediately prior to
such expiration or termination of this Lease for the
duration of such period. Additionally, during such
holding over with Lessor's acquiescence and without any
express agreement of the parties, the Lessee shall be a
tenant on a month-to-month basis which tenancy shall be
terminated absolutely and without remedy upon thirty
(30) days written notice of such intent by either party.
There shall be no renewal of this Lease by operation of
law.
GOVERNMENTAL
REQUIREMENTS 24. Lessee agrees, at its own expense, to promptly
comply with all requirements of any legally constituted
public authority made necessary by reason of Lessee's
occupancy of said premises.
EMINENT DOMAIN 25. If the whole of the leased premises or such portion
thereof as will make the premises unusable for the
purposes herein leased, be condemned by any legally
constituted authority for any public use or purpose,
then in either of said events the term hereby granted
shall cease from the time when possession thereof is
taken by public authorities, and rental shall be
accounted for as between Lessor and Lessee as of that
date. Any lesser condemnation shall in no way affect the
respective rights and obligations of Lessor and Lessee
hereunder. It is expressly agreed that the Lessee shall
not have any right or claim to any part of any award
made to or received by the Lessor for such taking.
DESTRUCTION OF
DAMAGED PREMISES 26. If the premises are totally destroyed (or so
substantially damaged as to be untenantable) by storm,
fire, earthquake, or other casualty, this Lease shall
terminate as of the date of such destruction or damage,
and rental shall be accounted for as between Lessor and
Lessee as of that date. If the premises are damaged but
not rendered wholly untenantable by any such casualty or
casualties, rental shall abate in such proportion as the
use of the premises has been destroyed until the Lessor
has restored the premises to substantially the same
condition as before damage, whereupon full rental shall
recommence. Nothing contained herein shall require
Lessor to make such restoration, however, if not deemed
advisable in its judgment. Lessor shall make its
intentions to restore or not to restore said premises to
original condition known to Lessee in writing, within 90
days of such occurrence. If Lessor decides against such
reconstruction or fails to provide such notice, Lessee
may, at its option, cancel this Lease, in which event
rent shall be apportioned and paid up to and including
the date the leased premises became untenantable if
terminated by Lessor, but up to and including the date
of termination if terminated by Lessee. If any such
repairs, alterations, removal, construction,
reconstruction or improvement shall be required by
reason of Lessee's use or occupancy of the leased
premises, then such action shall be by and at Lessee's
expense, and there shall be no termination under said
conditions. If renovation be required of the Lessor due
to government order or authority not occasioned by
Lessee's tenancy, the above
<PAGE> 7
provisions shall apply except that Lessor shall have
ninety (90) days to comply with same.
CASUALTY INSURANCE 27. Lessor shall at all times during the term of this
Lease, at its expense, maintain a policy or policies
insuring said building against loss or damage by fire,
explosion, or other hazards and contingencies provided
that Lessor shall not be obligated to insure any
furniture, equipment, machinery, goods or supplies not
covered by this Lease which Lessee may bring or obtain
upon the leased premises, or any additional improvements
which Lessee may construct thereon. If the annual
premiums payable by Lessor for such casualty insurance
exceed the standard premium rates due to actions or
additional hazards created as a result of Lessee's
occupancy. Lessee shall upon receipt of appropriate
premium invoices reimburse Lessor for such increase in
premiums.
RENOVATION BY LESSOR 28. If Lessor shall deem it necessary to effect
renovations or redecorations of the building in which
the leased premises are located, such action shall be
made at Lessor's expense and shall not in any way affect
Lessee's obligations under this Lease, and Lessee waives
all claim for injury, damage or abatement of rent
because of such repair, alteration, removal,
construction, reconstruction or improvement, provided,
however, if such action by Lessor shall render the
leased premises untenantable and if Lessor cannot
complete such acts within sixty (60) days, either Lessor
or Lessee may terminate this Lease, in which event rent
shall be apportioned and paid up to and including the
date the leased premises became untenantable if
terminated by Lessor, but up to and including the date
of termination if terminated by Lessee. If any such
repairs, alterations, removal, construction,
reconstruction or improvement shall be required by
reason of Lessee's use or occupancy of the leased
premises, then such action shall be by and at Lessee's
expense, and there shall be no termination under said
conditions. If renovation be required of the Lessor due
to governmental order or authority not occasioned by
Lessee's tenancy, the above provisions shall apply
except that Lessor shall have ninety (90) days to comply
with same.
ENTRY BY LESSOR 29. Lessor may enter the premises at reasonable hours
to exhibit the same to prospective purchasers or
tenants, to inspect the premises to see that the Lessee
is complying with all its obligations hereunder, and to
make repairs required of Lessor under the terms hereof
or repair to Lessor's adjoining property.
MORTGAGEE'S RIGHTS 30. This Lease is subject and subordinate in all
respects to all first deeds to secure debt and mortgages
which may now or hereafter affect Lease or be placed on
all or any part of the demised premises. Lessee, at the
request of the holder of any such deed to secure debt or
mortgage, will attorn within ten (10) days after being
so requested, to said holder or to the party designated
by said holder, as its direct tenant, and Lessee will
execute and deliver any certificate to such effect that
such holder or designated party may request. Lessee also
agrees that, in the event of such attornment, any
payment of rent hereunder by Lessee more than one month
in advance shall not be binding as against such holder
if a new and identical lease between such holder or its
designee, as Lessor, and Lessee, as tenant, had been
entered into for the remainder of the term hereof.
EXTERIOR SIGNS 31. Lessee shall not paint or place signs upon the
windows or corridor doors of the premises except with
the consent of the Lessor and Lessee shall place no
signs upon the outside walls or the roof of the premises
or building.
RULES AND REGULATIONS 32. The Rules and Regulations in regard to the
building, attached hereto as Exhibit A, and all rules
and regulations which Lessor may hereafter, from time to
time, adopt and promulgate for the government and
management of said building, are hereby made a part of
this Lease and shall, during the said term, be in all
things observed and performed by the Lessee and by the
Lessee's clerks, employees, servants, and agents. Lessee
does hereby accept and agree to abide by and uphold the
Rules and Regulations as shown in Exhibit A. Insofar as
the attached standard Rules and Regulations conflict
with any of the terms and provisions of this Lease
Agreement, the terms and provisions of the Lease shall
control.
DEFAULT OF LESSEE
REMEDIES OF LESSOR
FOR NON-COMPLIANCE 33. In the event: (a) the rent specified herein is not
paid at the time and place when and where due, (b) the
premises shall be deserted or vacated, (c) the Lessee
shall fail to comply with any term, provision, condition
or covenant of this Lease, other than the payment of
rent, or any of the rules and regulations now or
hereafter established for the government of this
building, or (d) any petition is filed by or against
Lessee under any section or chapter of the National
Bankruptcy Act as amended, (e) Lessee shall become
insolvent or make a transfer in fraud of creditors, (f)
Lessee shall make an assignment for benefit of
creditors, (g) a receiver is appointed for a substantial
part of the assets of Lessee, and Lessee does not cure
such defaults, with the exception of rental default as
provided for
<PAGE> 8
above, within thirty (30) days after notice to the
Lessee of such failure to comply; and upon the
occurrence of any one or more of the foregoing, Lessor
shall have the option to proceed according to one or
more of the following courses of action:
(a) Terminate this Lease, in which event Lessee shall
immediately surrender the leased premises to Lessor,
but if Lessee shall fail to do so, Lessor may,
without further notice and without prejudice to any
other remedy Lessor may have for possession or
arrearages in rent, enter upon the leased premises
and expel or remove Lessee and its effects, by force
if necessary, without being liable to prosecution or
any claim for damages therefor; and Lessee agrees to
indemnify Lessor for all loss and damage which
Lessor may suffer by reason of such termination,
whether through inability to re-let the leased
premises, or through decrease in rent, or otherwise;
and/or
(b) Declare the entire amount of the rent which would
become due and payable during the remainder of the
term of this Lease to be due and payable
immediately, in which event, Lessee agrees to pay
the same at once, together with all rents
theretofore due, at Lessor's address as provided
herein; provided, however, that such payment shall
not constitute a penalty or forfeiture or liquidated
damages, but shall merely constitute payment in
advance of the rent for the remainder of the said
term. The acceptance of such payment by Lessor shall
not constitute a waiver of any failure of Lessee
thereafter occurring to comply with any term,
provision, condition or covenant of this Lease;
and/or
(c) Enter the leased premises as the agent of the
Lessee, by force if necessary, without being liable
to prosecution or any claim for damages therefore,
and re-let the leased premises as the agent of the
Lessee, and receive the rent therefor, and the
Lessee shall pay the Lessor any deficiency that may
arise by reason of such re-letting on demand at the
office of the Lessor in ; and/or
(d) As agent of the Lessee, do whatever the Lessee is
obligated to do by the provisions of this Lease and
may enter the leased premises, by force if
necessary, without being liable to prosecution or
any claims for damages therefor, in order to
accomplish this purpose. The Lessee agrees to
reimburse the Lessor immediately upon demand for any
expenses which the Lessor may incur in thus
affecting compliance with this Lease on behalf of
the Lessee, and the Lessee further agrees that the
Lessor shall not be liable for any damages resulting
to the Lessee from such action, whether caused by
the negligence of the Lessor or otherwise.
Pursuit by Lessor of any of the foregoing remedies shall
not preclude the pursuit of any of the other remedies
herein provided or any other remedies provided by law.
No act or thing done by the Lessor or its agents during
the term hereby granted shall be deemed an acceptance of
a surrender of said leased premises, and no agreement to
accept a surrender of said leased premises shall be
valid unless the same be made in writing and subscribed
by the Lessor. The mention in this Lease of any
particular remedy shall not preclude the Lessor from any
other remedy the Lessor might have, either in law or in
equity, nor shall the waiver of or redress for any
violation of any covenant or condition in this Lease
contained or any of the rules and regulations set forth
herein, or hereafter adopted by the Lessor, prevent a
subsequent act, which would have originally constituted
a violation, from having all the force and effect of an
original violation. In case it should be necessary or
proper for Lessor to bring any action under this Lease,
or to consult, or place said Lease or any amount payable
by Lessee hereunder, with an attorney concerning or for
the enforcement of any of the Lessor's rights hereunder,
then Lessee agrees in each and any such case to pay to
Lessor a reasonable attorney's fee. The receipt by the
Lessor of rent with knowledge of the breach of any
covenant in this Lease contained shall not be deemed a
waiver of such breach. In the event of any default of
Lessee as defined herein during the term of this Lease,
or any renewal thereof, Lessor, in addition to but not
in lieu of or in limitation of, any other right or
remedy provided to Lessor under the terms of this Lease
or otherwise, shall have the right to be immediately
repaid by Lessee the unamortized amount of all sums
expended by Lessor in connection with preparing or
improving the leased premises to Lessee's specification,
such payment to be in a principal amount equal to the
unamortized outstanding balance of such sums on the date
of said default, said unamortized outstanding balance to
be determined by multiplying the amount of
$______________, which was the amount expended by Lessor
in preparing or improving the premises to Lessee's
specifications, times a fraction, the numerator of which
shall be the number of full calendar months remaining in
the term from the date of said default and the
denominator of which shall be the total number of full
calendar months in the term. Lessee hereby promises to
pay the unamortized outstanding balance calculated in
accordance with this provision, together with interest
on
<PAGE> 9
said amount at the rate of 8% per annum "add on," from
after the date of default, on demand of Lessor.
EFFECT OF TERMINATION
OF LEASE 34. No termination of the Lease prior to the normal
ending thereof, by lapse of time or otherwise, shall
affect Lessor's right to collect rent for the period
prior to the termination thereof.
SERVICE OF NOTICE 35. The Lessee hereby appoints as its agent to receive
the service of all dispossessory or distraint
proceedings, legal notices and notices required under
this Lease, the person in charge of said premises at the
time, or occupying the premises, and if there is no
person in charge or occupying the same, then such
service or notice may be made by attaching the same on
the main entrance to the premises.
MISCELLANEOUS PROVISIONS
SEVERABILITY 36. If any clause or provision of this Lease contract
is illegal, invalid or unenforceable under present or
future laws effective during the term of this Lease,
then and in that event, it is the intention of the
parties hereto that the remainder of this Lease shall
not be affected thereby, and it is also the intention of
the parties to this Lease contract that in lieu of each
clause or provision of this Lease contract that is
illegal, invalid or unenforceable, there be added as a
part of this Lease contract a clause or provision as
similar in terms to such illegal, invalid or
unenforceable clause or provision as may be possible and
be legal, valid and enforceable. If such invalidity is,
in the sole determination of Lessor, essential to the
rights of both parties, Lessor shall have the right to
terminate this Lease on written notice to Lessee.
CUMULATIVE RIGHTS 37. All rights, powers and privileges conferred
hereunder upon the parties hereto shall be cumulative
but not restrictive to those given by law.
ATTORNEY'S FEES AND
HOMESTEAD 38. If any rent owing under this Lease is collected by
or through an Attorney at Law, Lessee agrees to pay
fifteen percent (15%) thereof as attorney's fees. Lessee
waives all homestead rights and exemptions which it may
have under any law as against any obligation owing under
this Lease. Lessee hereby assigns to Lessor its
homestead and exemption.
ENTIRE AGREEMENT 39. This Lease contains the entire agreement of the
parties and no representations, inducements, promises or
agreements, oral or otherwise, between the parties not
embodied herein shall be of any force or effect. No
failure of the Lessor to exercise any power given the
Lessor hereunder, or to insist upon strict compliance by
the Lessee of any obligation hereunder, and no custom or
practice of the parties at variance with the terms
hereof shall constitute a waiver of the Lessor's right
to demand exact compliance with the terms hereof.
TIME OF ESSENCE 40. Time is of the essence of this Agreement.
NO ESTATE IN LAND 41. This contract shall create the relationship of
landlord and tenant between Lessor and Lessee; no estate
shall pass out of Lessor; Lessee has only a usufruct,
not subject to levy and sale, and not assignable by
Lessee except by lessor's consent.
PARTIES 42. "Lessor" as used in this Lease shall include the
first party, its successors and assigns entitled to the
premises. "Lessee" shall include the second party, his
heirs and representatives, successors and assigns and if
this Lease shall be validly assigned or sub-let, shall
include also Lessee's assignees or sub-lessees, as to
the premises covered by such assignment or sub-lease.
"Agent" shall include the third party, his successors,
assigns, heirs and representatives. "Lessor," "Lessee,"
and "Agent" include male and female singular and plural,
corporation, partnership or individual, as may fit the
particular parties.
RELOCATION 43. If the premises leased and occupied by Lessee under
this Agreement are less than 50% of a full floor, then
Lessor shall have the right to relocate the Lessee to
space of equal or greater kind and quality, if
necessary, in order to accommodate a tenant whose space
requirements are equal to or exceed 50% of a full floor.
Said relocation shall be at the sole expense of Lessor,
and no increase in rental shall result therefrom.
JUDICIAL
INTERPRETATION 44. Should any of the provisions of this Lease
Agreement require judicial interpretation, it is agreed
that the court interpreting or construing the same shall
not apply a presumption that the terms of any such
provision shall be more strictly construed against one
party by reason of the rule of construction that a
document is to be construed most strictly against the
party who itself or through its agent prepared the same,
it being agreed that the agents of all parties have
participated in the preparation of the special
stipulations of this Agreement.
<PAGE> 10
ESTOPPEL CERTIFICATES 45. Within ten (10) days after request therefor by
Lessor or any mortgagee of the premises, Lessee agrees
to execute and deliver, in recordable form, an estoppel
certificate addressed to any mortgagee or proposed
mortgagee or purchaser of the building or the complex In
which the premises is situated, or any part thereof, or
addressed to the Lessor, certifying (if such be the
case) that this Lease is unmodified and in full force
and effect (and if there have been any modifications,
that the same is in full force and effect as modified
and stating said modifications); that there are no
defenses, defaults, or offsets against the enforcement
of this Lease or stating those claimed by Lessee;
stating that rent has commenced to accrue, and that
tenant has accepted and is occupying the leased
premises; stating the date to which rentals and other
charges are paid; and as to mortgagees or prospective
mortgagees, agreeing that in the event the mortgagee
becomes owner of the leased premises or exercises an
assignment of rents granted mortgagee by the Lessor, the
Lessee will accept and attorn to the mortgagee or to a
party designed by said mortgagee as its direct tenant,
and that the mortgagee will not be bound by or
responsible for any rents paid in advance to Lessor or
offsets against Tenant or any prior defaults of the
Lessor and that thereafter all notices required or
permitted under the Lease to be given to Lessor shall
thereafter be given to said mortgagee. Such certificates
shall also include such other information as may be
reasonably required by any mortgagee.
FORCE MAJEURE 46. Lessor and/or Lessee shall be excused for the
period of any delay and shall not be deemed in default
with respect to the performance of any of the terms,
covenants, and conditions of this Lease when prevented
from so doing by a cause or causes beyond the Lessor's
and/or Lessee's control, which shall include, without
limitation, all labor disputes, governmental regulations
or controls, fire or other casualty, inability to obtain
any material or services, acts of God, or any other
causes, not within the reasonable control of the Lessor
and/or Lessee. This Paragraph 46 shall not apply to or
modify Lessee's obligations under this Lease to make
prompt payment to Lessor of the Base Rental and all
other charges due hereunder.
CAPTIONS 47. The captions of each paragraph and heading hereof
are added as a matter of convenience only and shall be
considered to be of no effect in the construction of any
provision or provisions of this Lease.
SPECIAL STIPULATIONS 48. Insofar as the special stipulations (if any)
attached hereto and made a part hereof by this reference
conflict with any of the foregoing provisions, the
special stipulations shall control.
<PAGE> 11
IN WITNESS WHEREOF, the parties herein have hereunto set their hands and
seals, in triplicate, as of the day and year first above written.
"LESSOR": P & T PROPERTIES, L.L.C.
By: /s/ Richard L. Prochnow (SEAL)
-----------------------------------
Richard L. Prochnow
(Title) Manager
-------------------------------------
"LESSEE" DIRECT SALES INTERNATIONAL, L.P.
By: /s/ Richard L. Prochnow (SEAL)
-----------------------------------
Richard L. Prochnow
(Title) President
-------------------------------------
"AGENT" n/a
By: (SEAL)
-----------------------------------
(Title)
-------------------------------------
<PAGE> 12
SPECIAL STIPULATIONS
Attached to Lease Agreement between P & T Properties, L.L.C. Lessor and
Direct Sales International, L.P. as Lessee.
1. The Lessee has the right to renew this Lease for two additional
five-year options at the rental rate in effect for the lease year in
which the option becomes effective and escalations of Base Rental
contemplated in item 7 of Lease shall continue in effect to increase
rent to the extent of increases in the Consumer Price Index. Lessee must
give Lessor six (6) months notice of termination or the option period
will automatically be effective.
2. Parking spaces are four per 1,000 square feet of occupied space adjusted
for partial 1,000's of square feet. Said parking to be designated on
parking master plan attached to Lease.
<PAGE> 13
RULES AND REGULATIONS
1. The sidewalks, entry passages, corridors, halls, elevators and stairways
shall not be obstructed by tenants, or used by them for any purpose other
than those of ingress and egress. The floors, and skylights and windows that
reflect or admit light into any place in said building, shall not be covered
or obstructed by tenants. The water closets and other water apparatus, shall
not be used for any other purpose than those for which they were constructed
and no sweepings, rubbish, or other obstructing substances shall be thrown
therein. Any damage resulting to them, or to associated systems, from
misuse, shall be borne by tenants who, or whose clerks, agents or servants,
shall cause it.
2. No advertisement or other notice shall be inscribed, painted or affixed on
any part of the outside or inside of said building, except upon the doors,
and of such order, size and style, and at such places as shall be designated
by lessor. Interior signs on doors will be supplied for tenants by Lessor,
the cost of the signs to be charged to and paid for by tenants.
3. No tenant shall do or permit to be done in said premises, or bring or keep
anything therein, which shall in any way increase the rate of fire insurance
on said building, or on property kept therein, or obstruct or interfere with
the rights of other tenants or in any way injure or annoy them, or conflict
with the laws relating to fires, or with the regulations of the Fire
Department, or any part thereof, or conflict with any of the rules and
ordinances of the Board of Health. Tenants, their clerks and servants, shall
maintain order in the building, shall not make or permit any improper noise
in the building or interfere in any way with other tenants or those having
business with them. Nothing shall be thrown by tenants, their clerks or
servants, out of the windows or doors, or down the passages or skylights of
the building. No rooms shall be occupied or used as sleeping or lodging
apartments at any time. No part of the building shall be used or in any way
appropriated for gambling, immoral or other unlawful practices, and no
intoxicating liquor or liquors shall be sold in said building.
4. Tenants shall not employ any persons other than the janitors of Lessor (who
will be provided with pass-keys into the offices) for the purpose of
cleaning or taking charge of said premises.
5. No animal, birds, bicycles or other vehicles, or other obstructions, shall
be allowed in the offices, halls, corridors, elevators or elsewhere in the
building.
6. 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 sustained by other
tenants, and to Lessor for damage to paint, plastering or other parts of the
building, resulting from such default or carelessness. No painting shall be
done, nor shall any alterations be made to any part of the building by
putting up or changing any partitions, 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 Lessor or its agents. All
glass, locks and trimmings in or upon the doors and windows of the building
shall be kept whole and, when any part thereof shall be broken, the same
shall be immediately replaced or repaired and put in order under the
direction and to the satisfaction of Lessor, or its agents, and shall be
left whole and in good repair. Tenants shall not injure, overload or deface
the building, the woodwork or the walls of the premises, nor carry on upon
the premises any noisome, noxious, noisy or offensive business.
7. Not more than two keys for each office will be furnished without charge. No
additional locks or latches shall be put upon any door without the written
consent of Lessor. Tenants, at termination of their lease of the premises,
shall return to lessor all keys to doors in the building and all plastic
cards for parking and entry to building.
8. Lessor in all cases retains the power to prescribe the weight and position
of iron safes or other heavy articles.
9. The use of burning fluid, camphene, alcohol, benzine, kerosene or anything,
except gas or electricity for lighting said premises, is prohibited. No
offensive gases or liquids will be permitted.
10. If tenants desire blinds or window covering of any kind over the windows,
they must be of such shape, color and material as may be prescribed by
Lessor, and shall be erected with lessor's consent and at the expense of
said tenants. No awnings shall be placed on said building.
11. If tenants require wiring from a bell or buzz system, such wiring shall be
done by the Electrician of the Building only, and no outside wiring men
shall be allowed to do work of this kind unless by the written permission of
Lessor, or its representatives. if telegraphic or telephonic service is
desired, the wiring for same shall be done as directed by the Electrician of
the Building or by some other employee of Lessor who may be instructed by
the Superintendent of the Building to supervise same, and no boring or
cutting for wiring shall be done unless approved by Lessor or its
representatives, as stated. The electric current shall not be used for power
or heating unless written permission to do so shall first have been obtained
from Lessor, or its representative in writing and at an agreed cost to
tenants.
12. Tenants and occupants shall observe and obey all parking and traffic
regulations as imposed by Lessor on the premises. Lessor in all cases
retains the power to designate "no parking" zones, traffic right-of-ways,
and general parking area procedures. Failure of Lessee to comply will
constitute a violation of the Lease.