GAEDEKE REALTY
A TEXAS LIMITED LIABILITY COMPANY
May 29, 1996
Mr. ▇▇▇▇ ▇▇▇▇▇
Woodhaven Homes, Ltd.
▇▇▇▇ ▇▇▇▇▇▇▇▇ #▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
RE: Lease Agreement by and between ▇▇▇▇▇▇▇ Holdings, Ltd., Landlord, and
Woodhaven Homes, Ltd., Tenant
Dear ▇▇▇▇:
Enclosed please find a fully executed original of the above referenced Lease
Agreement for your files.
▇▇▇▇, we appreciate having Woodhaven Homes, Ltd. as a Tenant at Oak Lawn
Plaza and look forward to serving you in the years to come. The
construction documents are being prepared and will be complete on Monday,
June 3, 1996. If I can be of further service to you, please contact me at
214/528-0133 ext. 222
Sincerely,
GAEDEKE ▇▇▇▇▇▇▇, LLC
AS AGENT FOR ▇▇▇▇▇▇▇ HOLDINGS, LTD.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Director of Leasing
MJH/je
Enclosures
BASIC LEASING INFORMATION
Lease Date: ______________________________
Tenant: WOODHAVEN HOMES, LTD.
Address of Tenant: ▇▇▇▇ ▇▇▇▇▇▇▇▇ #▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Contact: ▇▇▇▇ ▇▇▇▇▇ Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Landlord: ▇▇▇▇▇▇▇ HOLDINGS, LTD.
Address of Landlord: ▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Contact: ▇▇▇▇ ▇▇▇▇▇ Telephone: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇ fax
Demised Premises: Suite No. 550, which is located in office building to be
(or which has been) Constructed and known as Oak Lawn Plaza (the
"Building") located at ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇.
Lease Term: The period commencing on June 29, 1996, (the "Commencement
Date") or on such earlier date as Tenant may occupy the Demised Premises
with Landlord's prior written consent and continuing for fifty (50)
calendar months after the Commencement Date; provided, however, if the term
of this Lease is deemed to have commenced on a date other than the first
day of a calendar month, the Lease Term shall consist of fifty (50)
calendar months in addition to the remainder of the calendar month during
which the Lease is deemed to have commenced.
Base Rental: Mo. 1 $8,024.00 per month
Mo. 2 -0-
Mos. 3-12 $8,024.00 per month
Mo. 13 -0-
Mos. 14-24 $8,024.00 per month
Mos. 25-50 $8, 345.00 per month
Security Deposit: $8,024.00
Net Rentable Area
in the Building: 128,337 NRSF
Net Rentable Area
in Demised Premises: 7,703 NRSF
Permitted Use: General Office Use and Title Company Fee Office
The foregoing Basic Lease Information is hereby incorporated into and made a
part of the Lease identified hereinabove. Each reference in the Lease to any of
the information and definitions set forth in the Basic Lease Information shall
mean and refer to the information and definitions hereinabove set forth and
shall be used in conjunction with and limited by all references thereto in the
provisions of the Lease. In the event of any conflict between any Basic Lease
Information and the Lease, the Lease shall control.
TABLE OF CONTENTS
1. DEFINITIONS AND BASIC PROVISIONS......................................................................... 1
2. LEASE GRANT.............................................................................................. 2
3. BASE RENTAL.............................................................................................. 2
4. BASE RENTAL ADJUSTMENT................................................................................... 2
5. SECURITY DEPOSIT......................................................................................... 7
6. USE...................................................................................................... 7
7. LANDLORD'S OBLIGATIONS................................................................................... 7
8. TENANT'S REPAIRS AND ALTERATIONS......................................................................... 8
9. INDEMNITY................................................................................................ 9
10. ASSIGNMENT AND SUBLETTING................................................................................ 9
11. INSPECTION............................................................................................... 10
12. SUBORDINATION............................................................................................ 10
13. LEASEHOLD IMPROVEMENTS................................................................................... 11
14. MECHANIC'S LIEN.......................................................................................... 11
15. SUBROGATION.............................................................................................. 11
16. INSURANCE................................................................................................ 11
17. CONDEMNATION............................................................................................. 12
18. FIRE & OTHER CASUALTY.................................................................................... 12
19. HOLDING OVER............................................................................................. 12
20. TAXES ON TENANT'S PROPERTY............................................................................... 13
21. EVENTS OF DEFAULT........................................................................................ 13
22. REMEDIES................................................................................................. 13
23. SURRENDER OF PREMISES.................................................................................... 14
24. ATTORNEY'S FEES.......................................................................................... 15
25. LANDLORD'S LIEN.......................................................................................... 15
26. QUIET ENJOYMENT.......................................................................................... 15
27. NOTICES.................................................................................................. 15
28. FORCE MAJEURE............................................................................................ 16
29. LEGAL INTERPRETATION..................................................................................... 16
30. AMENDMENTS; BINDING EFFECT............................................................................... 16
31. RULES AND REGULATIONS.................................................................................... 16
32. SUBSTITUTION OF SPACE.................................................................................... 16
33. EXHIBITS AND ATTACHMENTS................................................................................. 16
34. GENDER................................................................................................... 17
35. CAPTIONS................................................................................................. 17
36. PREPAYMENTS.............................................................................................. 17
37. TENANT'S REMEDIES........................................................................................ 17
38. CHANGE OF BUILDING NAME.................................................................................. 17
39. ESTOPPEL CERTIFICATIONS.................................................................................. 17
40. JOINT AND SEVERAL LIABILITY.............................................................................. 17
41. CERTAIN RIGHTS RESERVED BY LANDLORD...................................................................... 17
42. NOTICE TO LENDER......................................................................................... 18
43. LOSS OR THEFT............................................................................................ 18
44. PARKING.................................................................................................. 18
45. LANDLORD'S PERFORMANCE OF TENANT'S OBLIGATIONS........................................................... 19
46. RECORDATION.............................................................................................. 19
47. SURRENDER OF DEMISED PREMISES............................................................................ 19
48. LIGHT AND AIR............................................................................................ 19
49. MISCELLANEOUS............................................................................................ 19
50. NON-DISCLOSURE CLAUSE.................................................................................... 20
51. ENVIRONMENTAL MATTERS.................................................................................... 20
52. COMPLIANCE WITH LAWS AND REGULATIONS..................................................................... 21
53. AMERICANS WITH DISABILITIES ACT AND TEXAS ARCHITECTURAL BARRIER STATUTE.................................. 22
EXHIBITS
EXHIBIT A..........................DEMISED PREMISES
EXHIBIT B... ....................... ...RULES AND REGULATIONS
EXHIBIT C.......... ..................WORK LETTER AGREEMENT
EXHIBIT D..... ...............................LEGAL DESCRIPTION
EXHIBIT E.. ....... .. ..................PARKING AGREEMENT
EXHIBIT F....... .... ...........RIGHTS OF FIRST REFUSAL
LEASE
THIS LEASE AGREEMENT (the "Lease") is made and entered into as of
______________,1996 in multiple copies, between ▇▇▇▇▇▇▇ HOLDINGS, LTD.,
("Landlord") and WOODHAVEN HOMES, LTD. (Tenant").
1. DEFINITIONS AND BASIC PROVISIONS
The definitions and basic provisions set forth in the Basic Lease
Information (the "Basic Lease Information") executed by Landlord and
Tenant contemporaneously herewith are incorporated herein by reference
for all purposes and shall be used in conjunction with and limited by
the reference thereto in the provisions of this Lease. In the event of
any conflict between any provision of the Basic Lease Information and
this Lease, this Lease shall control. The definitions of certain
additional terms used in this Lease are set forth below and in the
Building Rules and Regulations attached hereto as Exhibit "B"; those
respective terms as used herein shall be given their defined meaning.
a. "Building shall mean that certain 8-story office building which has been
constructed on the Site.
b. "Building Standards" or "Building Standard" shall mean such
standards applicable to the Building, as determined by
Landlord in its sole discretion, taking into account similar
standards applicable to the operation of other Class "A"
buildings of the same quality and character of, and in the
general vicinity as, the Building.
c. "Non-Building Standards" or "Non-Building Standard" Tenant
Improvement items shall include, but not be limited to, the
following: any plumbing within the Demised Premises; any glass
doors at the entrance of the Demised Premises or within the
Demised Premises; any glass or mirrors within the Demised
Premises; millwork; draperies; ceiling fans; appliances such
as, but not limited to, microwaves, dishwashers,
refrigerators, icemakers; flooring other than building
standard carpeting; wall coverings; sconces, canned lights or
other specialized lighting.
d. "Commencement Date" shall mean the date the Demised Premises are
ready for occupancy, as certified to by Landlord's architect or agent. The
existence of minor work (punch list items) to be performed within the
Demised Premises will not justify refusal of Landlord's architect or agent
to certify that the Demised Premises are ready for occupancy or the refusal
of Tenant forthwith to accept the Demised Premises, or delay the
Commencement Date. If this Lease is executed before the Demised Premises
become vacant, or otherwise available and ready for occupancy, or if any
present Tenant or occupant of the Demised Premises holds over and Landlord
cannot acquire possession of the Demised Premises prior to the Commencement
Date of this Lease, Landlord shall not be deemed to be in default
hereunder, and Tenant agrees to accept possession of the Demised Premises
on such date as Landlord is able to tender same, which date shall be deemed
to be the Commencement Date for all purposes; however, no later than
ninety(90) days from full execution of the Lease. At such time as the
Landlord's architect or agent certifies that the Demised Premises are ready
for occupancy, Landlord and Tenant shall execute a memorandum reciting the
date from and after which Base Rental will be due Landlord, which
memorandum shall then become a supplement to this Lease.
e. Demised Premises" shall mean all of the space of the Building
leased pursuant to the terms and provisions of this Lease,
located on Floor Five (5), Suite 550 of the Building, all as
shown and outlined as the outline of Demised Premises on the
floor plan or plans of such premises attached hereto as
Exhibit `A".
f. "Net Rentable Area" (NRA) of the Leased Premises shall mean
the gross area within the inside surface of the outer glass of
the exterior walls, to the mid-point of any walls separating
portions of the Leased Premises from those of adjacent tenants
and to the inside surface of walls separating the Leased
Premises from Common and Service areas, multiplied by a factor
of 13.7% which represents the relationship of the Leased
Premises to the common areas of the building
The total net rentable area of the building is 128, 337 square feet.
g. "Project' shall mean the Site, the Building, any parking
garage located on the Site and all other improvements located
on the Site.
h. "Site" shall mean the land upon which the building is situated.
i. "Trade Fixtures" shall mean any and all signs placed by Tenant
within the Demised Premises pursuant to provisions hereof and
any and all items of property used by Tenant in the Demised
Premises, including but not limited to furniture and
equipment. The term Trade Fixtures shall not include any
permanent leasehold improvements (all of which are permanent
leasehold improvements, as between Landlord upon the
incorporation in or affixation to the Demised Premises)
including but not limited to any floor, wall or ceiling
coverings, and interior walls or partitions, any lighting
fixtures, or any property a part of or associated with any
electrical, plumbing or mechanical system, notwithstanding
that the same may have been installed within the Demised
Premises.
2. LEASE GRANT
Landlord, in consideration of the covenants and agreements to be
performed by Tenant and upon the terms and conditions hereinafter
stated, does hereby lease, demise and let unto Tenant and the Demised
Premises, as defined in the Basic Lease Information and generally
outlined on the Outline of Demised Premises attached hereto as Exhibit
"A", commencing on the Commencement Date and ending on the last day of
the Lease Term unless sooner terminated as herein provided. By
occupying the Demised Premises, Tenant shall be deemed to have accepted
the same as suitable for the purposes herein intended and to have
acknowledged that the same comply fully with Landlord's obligations,
notwithstanding that certain "punch list" type items may not have been
completed.
3. BASE RENTAL
Tenant hereby agrees to pay base rental (herein referred to as the
"Base Rental") in the sum of (See "Base Rental on Basic Leasing
Information Page) per month and any adjustments thereto made pursuant
to Paragraphs 4 and S of this Lease. The Tenant shall also pay, as
additional rent, all such other sums of money as shall become due and
payable by Tenant to Landlord under the terms of this Lease. The Base
Rental shall be due and payable on the first day of each calendar month
during the Lease Term, at Landlord's address as provided herein (or at
such other address as may be designated by Landlord from time to time).
If the Commencement Date is a day other than the first day of a
calendar month or in the event this Lease terminates on other than the
last day of a calendar month, then the Base Rental for such month or
months shall be prorated and the amount so prorated shall be paid by
Tenant to Landlord in advance.
If Tenant fails to pay any regular monthly installment of rent by the
fifth (5th) day of the month in which the installment is due, or any
other sum of money owed Landlord within five (5) days after accrual
thereof or billing therefore, there shall be added to such unpaid
amount a late charge of ten percent (10%) of the installment or amount
due in order to compensate Landlord for extra administrative expenses
incurred.
4. BASE RENTAL ADJUSTMENT
The Base Rental shall be adjusted from time to time in accordance with
the following provisions:
a. The Base Rental includes a component allocable to Operating
Costs per month equal to 1996 Base Year per square foot of Net
Rentable Area in the Building. This amount is an estimate of
Operating Costs per month as if the Building were in operation
on the date of this Lease.
b. Prior to each January 1 during the Lease Term, or as soon
thereafter as possible, Landlord shall provide an estimate of
Operating Costs per month for the forthcoming calendar year.
If this estimate exceeds the original 1996 Base Year per
square foot of Net Rentable Area in the Building, then the
Base Rental for each such calendar month during the
forthcoming calendar year shall be adjusted upward by an
amount equal to the product of such excess times the Net
Rentable Area of the Demised Premises.
c. On or before June 1 of each year during the Lease Term and on
or before the next succeeding first day of June after the
expiration of the Lease Term, or as soon thereafter as
possible, Landlord shall furnish to Tenant a statement of
Operating Costs for the previous calendar year and
reconciliation payments or a credit, if any, shall be made as
follows:
i. If the actual Operating Costs per square foot of the
Net Rentable Area of the Building exceed the
estimated Operating Costs per square foot of the Net
Rentable Area of the Building for the previous
calendar year or the original 1996 Base Year per
square foot estimate, whichever is greater, Tenant
shall pay Landlord a lump sum payment, within thirty
(30) days of the delivery of Landlord's statement,
equal to the product of such excess times the Net
Rentable Area of the Demised Premises; or
ii. If the estimated Operating Costs per square foot of
Net Rentable Area of the Building for the previous
calendar year exceed the actual Operating Costs per
square foot of Net Rentable Area of the Building for
the previous calendar year or the original 1996 Base
Year per square foot estimate, whichever is greater,
Landlord shall either credit against the next
succeeding installments of the Base Rental or other
sums due hereunder or within thirty (30) days of the
delivery of Landlord's statement, pay Tenant an
amount equal to the product of such excess times the
Net Rentable Area of the Demised Premises.
The effect of this reconciliation payment or credit
is that Tenant will pay during the Lease Term its
share of Operating Costs increases over the original
1996 Base Year per square foot estimate and no more.
d. Notwithstanding any other provision herein to the contrary, if
fewer than 95% of the total rentable square feet in the
Building is occupied by tenant(s) or Landlord is not supplying
services to 95% of the total rentable square feet in the
Building at any time during any such calendar year, Operating
Expenses for such calendar year shall be determined to be an
amount equal to the expense that would normally be expected to
be incurred had such occupancy been 95% of the Building's
total square feet of rentable area and had Landlord been
supplying services to 95% of the Building's total square feet
of rentable area throughout such calendar year.
e. In no event shall Tenant's pro rata share of the excess
(excluding taxes, insurance, and utilities) in any Calendar
Year increase by more than eight percent (8%) over Tenant's
pro rata share of actual operating expenses (excluding taxes,
insurance, and utilities) in the previous Calendar Year.
f. If the Lease Term has commenced, terminated or expired on any
day other than the first day of a calendar year, the
calculations with respect to the reconciliation payment or
credit described in (d) above shall be prorated accordingly.
The obligation of Landlord to Tenant makes such reconciliation
payment or credit shall survive the termination or expiration
of this Lease.
g. `Operating Costs" shall mean all operating expenses of the
Project and shall consist of all expenditures by Landlord to
maintain all of the Project in operation at the beginning of
the Lease Term in subsequent years as may be determined by
Landlord to be necessary or beneficial for the operation of
the Project. The term "operating expenses" as used herein
shall mean all expenses, costs and disbursements (but not
replacement of capital investment items nor specific costs
specifically billed to and paid by specific tenants) of every
kind and nature which Landlord shall pay or become obligated
to pay because of or in connection with the ownership or
operation of the Project, including but not limited to, the
following:
i. Wages and salaries of all employees engaged in
operation and maintenance or security of any part of
the Project, including, taxes, insurance and benefits
relating to such employees.
ii. All supplies and materials used in operating and
Maintenance of any part of the project.
iii. Cost of all utilities for the Project.
iv. Cost of all maintenance, janitorial, security and
service agreements for the Project, and the equipment
therein, including alarm service, window cleaning and
elevator maintenance.
v. Cost of all insurance relating to the Project
including cost of casualty and liability insurance
and Landlord's personal property used in connection
therewith.
vi. All taxes and assessments and governmental charges
whether federal, state, county or municipal, and
whether they be by taxing districts or authorities
presently taxing any part of the Project or by
others, subsequently created or otherwise, and any
other taxes or assessments attributable to the
Project or its operations. Tenant shall be
responsible for ad valorem taxes on its personal
property and on the value of leasehold improvements
to the extent that same are not Building Standard
items.
vii. Cost of repairs and general maintenance of any part
of the Project (excluding repairs and general
maintenance paid by proceeds of insurance or by
Tenant or other third parties, and alterations
attributable solely to tenants of the Building other
than Tenant) including, without limitation,
landscaping of any part of the Project.
viii. Purchase and installation and purchase of capital
investment items which are primarily for the purpose
of reducing operating costs or which may be required
by and governmental authority. All such costs shall
be amortized over the reasonable life of the capital
investment items, with the reasonable life and
amortization schedule being determined in accordance
with generally accepted accounting principles and in
no event to extend beyond the reasonable life of the
Building or other part of the Project to which such
costs are related.
ix. Landlords central accounting and overhead costs
applicable to the Project. All fees, costs and
charges paid to any persons or entity who manage any
part of the Project.
h. Exclusions from Operating Expenses:
(i) Capital Improvements.
(a) Costs incurred by Landlord for alterations,
additions, and replacements which are considered
capital expenditures under generally accepted
accounting principles, consistently applied, except
to the extent that they are incurred primarily to
effect a reduction in operating expenses of the
building, but only to the extent of said annual cost
savings.
(b) Depreciation and amortization, except that a
reasonable amortization charge, not to exceed the
amount of the annual cost savings, may be taken on
account of capital expenditures incurred primarily to
effect a reduction in operating expenses of the
building.
(c) All other costs of a capital nature, including, but
not limited to, capital equipment and capital tools,
all in conformity with generally accepted accounting
principles consistently applied except to the extent
that they are incurred primarily to effect a
reduction in operating expenses of the building but
only to the extent of said annual cost savings.
(d) Costs of correcting defects in the building, the
parking facilities or the equipment used therein and
the replacement of defective equipment to the extent
such costs are covered by warranties of
manufacturers, suppliers, or contractors, or are
otherwise borne by parties other than landlord,
except that conditions resulting from ordinary wear
and tear will not be deemed defects for the purpose
of this category.
(f) Costs of repairs or other work occasioned by fire,
windstorm, or other casualty of an insurable nature,
whether or not Landlord carries such insurance, and
costs reimbursable to Landlord by governmental
authorities in eminent domain.
(g) Rental and other related expenses, if any, incurred
in leasing air conditioning systems, elevators, or
other equipment ordinarily considered to be of a
capital nature, except equipment used in providing
janitorial services and which is not affixed to the
building.
(h) Any other expenses or costs that, under generally
accepted accounting principles, consistently applied,
would not be considered a normal maintenance or
operating expense of the building, including, without
limitation, losses due to uncollected rent or fees or
reserves for bad debts.
(ii)Tenant Specific Costs.
(a) Any expenses that are/or should be separately metered
or billed directly to or separately paid by another
tenant or other third party.
(b) Costs of preparation of space, including tenant
build-out, renovating or otherwise changing,
improving, decorating, or redecorating space for new
tenants, prospective tenants, or other occupants in
the building, or vacant space in the building except
for routine, periodic repair, and replacement not
considered to be capital items under generally
accepted accounting principles, consistently applied.
(c) Costs incurred in removing the property or improvements of
former tenants or other occupants of the building.
(d) Any concessions including rental abatement, lease
buy-outs, club memberships, or other inducements
incurred by Landlord in connection with the leasing
or renewal of leases in the building.
(e) Architectural fees, leasing commissions, attorney's
fees, costs and disbursements, and other expenses
incurred in connection with negotiations or disputes
with tenants, prospective tenants or other occupants
of the building and any such expenses incurred in
connection with this lease.
(f) Specific costs incurred for third parties (including
other tenants), including without limitation, above
building standard electrical and/or janitorial,
services, and other services above building standard.
(g) All utility costs for which the Tenant directly contracts
with local utility companies.
(h) Costs incurred due to acts of Landlord, any other
tenant, or other occupant causing an increase in rate
of insurance on the building or its contents.
(iii) Penalties and Violations.
(a) Costs, fines, interest penalties, legal fees, and
costs of litigation incurred due to late payment of
taxes (except for penalties associated with
Landlord's good faith contest of real estate taxes),
utility bills, ground rentals or mortgage debt, and
other such costs incurred by Landlord's failure to
make such payments when due
(b) Penalties, fines, and other costs incurred due to
violations (or alleged violations) by Landlord, and
tenant or third party of any laws, rules,
regulations, codes, or ordinances.
(c) Costs incurred due to violations or alleged
violations by Landlord or any tenant or other
occupant of the building of the terms and conditions
of any lease or other rental arrangement covering
space in the building.
(iv)Administrative Costs.
(a) Any overhead, administrative and general office
expense other than the management fee and permitted
office expenses provided above.
(b) Overhead and profit increments paid to subsidiaries
or affiliates of Landlord for services on or to the
property, to the extent such overhead or profit
increments exceed that which would have been earned
or paid to an independent, third-party provider of
the same or similar services.
(c) Wages, salaries, and other compensation of any kind
or nature paid to any executive employees above the
grade of building manager.
(d) Profit of Landlord in the furnishing of goods and services
to the building.
(e) Costs exceeding those obtainable through competitive
bidding.
(v) Debt Service, Certain Taxes, and Ownership.
(a) Ground rentals, payment of principal and interest on
debt (and other debt costs), amortization payments on
any mortgage or mortgages executed by Landlord
covering the building (or any portion thereof) except
to the extent that any of the foregoing may include
payments or prepayments of insurance premiums or
taxes that would be included in operating expenses if
paid directly to Landlord), rental concessions and
negative cash flow guaranties.
(b) Costs incurred in connection with the sale,
refinancing, mortgaging or selling or change of
ownership of the building, including but not limited
to brokerage commissions, attorneys' and accountants'
fees, loan brokerage fees, closing costs, interest
charges, and taxes.
(c) State, local, federal, personal, and corporate income
taxes measured by the income of Landlord from all
sources or from sources other than rent alone; estate
and inheritance taxes; franchise, succession and
transfer taxes.
(d) All costs incurred by Landlord in connection with any
dispute relating to the Landlord's title to or
ownership of the property.
(vi) Marketing Costs.
(a) Advertising and promotional expenditures.
(b) Contributions to charitable organizations.
(vii) Environmental Costs. Expenses and costs relating in any way
to the identification, testing, monitoring and control,
encapsulation, removal, replacement, repair or abatement of any
hazardous materials within the building, the garage, leased
premises, or the land.
i. Audit and Contest Provision: Tenant, at Tenant's sole cost and
expense, shall have the right to be exercised by written notice given to
Landlord within thirty (30) days after receipt of the statement showing
Operating Expenses for the preceding calendar year, to audit, at the place
where Landlord maintains its books and records, Landlord's books and
records pertaining only to such Operating Expenses for such preceding
calendar year, provided such audit commences with 30 days after Tenant's
notice to Landlord and thereafter proceeds regularly and continuously to
conclusion and, provided further, that such audit does not unreasonably
interfere with the conduct of Landlord's business. Landlord agrees to
cooperate in good faith with Tenant in the conduct of any such audit. If
the audit reveals a discrepancy of 5% or more the Landlord shall (i)
reimburse Tenant for the expense of the audit, and (ii) refund to Tenant
within 30 days of the date of the audit report any overpayment made by
Tenant by reason of the discrepancy. If less than five percent (5%), Tenant
shall pay for all audit costs, including Landlord's costs.
5. SECURITY DEPOSIT
Tenant hereby agrees to pay Landlord a security deposit of Eight
Thousand Twenty-four Dollars ($8,024.00) payable on the date this Lease
is executed by Tenant. Landlord shall hold and receive the security
deposit without liability for interest. Upon default by Tenant
hereunder, Landlord may, from time to time, without prejudice to any
other remedy, use such security deposit to the extent necessary to make
good any arrears of Base Rental or any additional rent, or any other
damage, injury, expense or liability incurred by Landlord by reason of
default by Tenant. After any such application of security deposit,
Tenant shall, upon request of Landlord, pay to the Landlord the amount
so applied so as to restore the security deposit to its original
amount. Any remaining balance of such security deposit shall be
returned by Landlord to Tenant within a reasonable period of time after
the termination of this Lease. The security deposit shall not be
considered an advance payment of rental or a measure of Landlord's
damages in case of default by Tenant.
6. USE
The Demised Premises shall be used and occupied by Tenant only for the
Permitted Use, as defined in the Basic Lease Information. Tenant shall
not occupy or use, or permit to be occupied or used, any portion of the
Demised Premises for any other purpose, or for any business or purpose
which is unlawful in part or in whole or deemed to be disreputable in
any manner, or extra hazardous on account of fire, nor permit anything
to be done which will in any way increase the rate of fire insurance on
the Building or its contents, and in the event that there shall be any
increase in the rate of insurance on the Building or its contents, as a
result of Tenant's acts or conduct of business, then such Tenant shall
pay such increase to Landlord on demand, and acceptance of such payment
shall not constitute Landlord's waiver of such default of Tenant or of
any of Landlord's rights or remedies hereunder. Tenant will conduct its
business and control its agents, employees and invitees in such a
manner as not to create any nuisance, nor interfere with, annoy or
disturb other tenants or Landlord in the management of the Building.
Tenant will maintain the Demised Premises in a clean and healthful
condition.
7. LANDLORD'S OBLIGATIONS
In respect of the Demised Premises, Landlord shall use its best efforts
to furnish, or cause public utilities to furnish, to Tenant during the
Lease Term:
a. Electricity and water to be utilized in operating any and all
facilities serving the Demised Premises;
b. Hot and cold water at those points of supply provided for general
use of other tenants in the Building;
c. Central heat and air conditioning in season during Normal
Business Hours (and at the request and expense of Tenant
during other hours), at such temperatures and in such amounts
as are consistent with Building Standards;
d. Routine maintenance and electric lighting service for all
public areas and special service areas of the Building in a
manner and to the extent consistent with Building Standards;
e. Janitor service on a five (5) day week basis, excluding
holidays, at no extra charge to Tenant unless Tenant's floor
coverings or other improvements are not consistent with
Building Standards, in which case Tenant shall pay the
additional cleaning cost attributable thereto upon
presentation of a statement therefor by Landlord;
f. Personnel or equipment to maintain security for the Building;
provided, however, Landlord shall have no responsibility to
prevent, and shall not be liable to Tenant for and shall be
indemnified by Tenant against any liability or loss to Tenant,
its agents, employees and visitors arising out of losses due
to theft, burglary, or damage or injury to persons or property
caused by persons gaining access to the Building or the
Demised Premises;
g. Electrical facilities to furnish sufficient power for
typewriters, calculating machines, and other machines of
similar low electrical consumption; but not including
electricity required for photocopying machines, electrical
data processing equipment or special lighting in excess of an
amount consistent with Building Standards, and to the extent
that Tenant requires electrical power which is in excess of
Building Standard, Tenant shall pay for the use of such
additional power and metering thereof promptly upon receipt of
an invoice therefor; notwithstanding anything to the contrary
contained herein, at the time of lease commencement, Tenant's
electrical usage is not in excess of building standard.
h. All light bulbs and fluorescent tube replacements in all areas
of the Demised Premises consistent with Building Standards,
provided that Landlord's standard charge for such bulbs and
tubes shall be paid by Landlord and all incandescent bulb
replacements in public areas, toilet and rest room areas and
stairwells; and
i. Non-exclusive passenger elevator service in the Building
twenty-four (24) hours per day and non-exclusive freight
elevator service during Normal Business Hours.
Failure by Landlord to any extent to furnish or cause to be furnished
the services described in Paragraph 7 of this Lease, or any cessation
thereof, resulting from causes beyond the control of Landlord shall not
render Landlord liable in any respect for damages to either person or
property, nor be construed as an eviction of Tenant, nor result in an
abatement of rent, nor relieve Tenant from fulfillment of any covenant
or agreement contained in this Lease. Provided, however, in the event
that Landlord fails to provide water, electricity, elevator service, or
access to the premises for a period in excess of eight (8) consecutive
business days, all rent payable by Tenant under this Lease shall be
abated and waived beginning on the date of the failure and continuing
thereafter until such time as the failure is cured by Landlord.
8. TENANT'S REPAIRS AND ALTERATIONS
Tenant agrees to keep the Demised Premises, including all fixtures
installed by Tenant and any interior plate glass and special store
fronts, in good condition and make all necessary non-structural repairs
except those covered by fire, casualty or acts of God covered by
Landlord's fire insurance policy covering the Building. Tenant will not
in any manner deface, damage or injure the Building, and will pay the
cost of repairing any damage or injury done to the Building or any part
thereof, including without limitation, structural damages, by Tenant or
Tenant's agents, employees, licensees or invitees. Tenant will not make
or allow to be made any alterations or physical additions in or to the
Demised Premises including without limitation, painting, installing
lighting, decorations, signs, window or door lettering or advertising
media of any type on or about any portion of the Demised Premises
without the prior written consent of Landlord. The performance by
Tenant of its obligations to maintain and make repairs shall be
conducted only by contractors and subcontractors approved in writing by
Landlord, it being understood that Tenant shall procure and maintain
and shall cause such contractors and subcontractors engaged by or on
behalf of Tenant to procure and maintain insurance coverage against
such risks, in such amounts and with such companies as Landlord may
require in connection with any such maintenance and repair. If Tenant
fails to make such repairs within fifteen (15) days after the
occurrence of the damage or injury, Landlord may at its option make
such repair and Tenant shall, upon demand therefor, pay Landlord for
the cost thereof. At the expiration or termination of this Lease,
Tenant shall deliver up the Demised Premises with all improvements
located thereon (except as otherwise herein provided) in good repair
and condition, reasonable wear and tear excepted, and shall deliver to
Landlord all keys to the Demised Premises. All alterations, additions
or improvements (whether temporary or permanent in character) made in
or upon the Demised Premises, either by Landlord or tenant, shall be
Landlord's property on termination or expiration of this Lease and
shall remain on the Demised Premises without compensation to Tenant.
All furniture, movable trade fixtures and equipment installed by Tenant
may be removed by Tenant at the termination of expiration of this Lease
if Tenant so elects, and shall be so removed if required by Landlord,
or if not so removed shall, at the option of Landlord, become the
property of Landlord. All such installations, removals and restoration
shall be accomplished in a good and workmanlike manner so as not to
damage the Demised premises or the primary structure or structural
qualities of the building or the plumbing, electrical lines or other
utilities.
9. INDEMNITY
Landlord shall not be liable for and Tenant will indemnify and save
harmless Landlord from any and all fines, suits, claims, demands, losses and
actions of any kind (including attorney's fees) for any injury to person or
damage to or loss of property on or about the Demised Premises, the building or
the land upon which the Building is situated caused by the negligence,
misconduct or any breach, violation or non-performance of any covenant hereof on
the part of Tenant, its employees, agents, subtenants, licensees, invitees or by
any other person entering the Demised Premises, the Building or the land upon
which the Building is situated, under expressed or implied invitation of Tenant,
or arising out of Tenant's use of the Demised Premises. Landlord shall not be
liable or responsible for any loss or damage to any property or person
occasioned by theft, fire, act of God, public enemy, injunction, riot, strike,
insurrection, war, court order, requisition or order of governmental body or
authority or other matter beyond the reasonable control of Landlord, or for any
damage or inconvenience which may arise through repair or alteration of any part
of the Building, or failure to make repairs, or from any cause whatever except
Landlord's gross negligence or willful wrong. Landlord agrees to indemnify and
save harmless Tenant from any amid all fines, suits, claims, demands, losses,
and actions of any kind (including attorneys' fees) for any injury to person, or
damage to or loss of property within the common areas of the Building resulting
from any occurrence within the common areas of the Building that (i) was not
proximately caused in whole or in part by the negligence of Tenant or Tenant's
employees, agents, contractors, or invitees, and (ii) was proximately caused by
the negligence of Landlord or Landlord's employees, agents, contractors, or
invitees.
10. ASSIGNMENT AND SUBLETTING
a. Tenant shall not, without prior written consent of Landlord which
will miot be unreasonably withheld, (i) assign or in any manner
transfer this Lease or any estate or interest therein, (ii) permit an
assignment of this Lease or any estate or interest therein by operation
of law, (iii) sublet the Demised Premises or any part thereof, (iv)
grant any license, concession or other right of occupancy of any
portion of the Demised Premises or (v) permit the use of the Demised
Premises by any parties other than Tenant, its agents and employees and
any such acts without Landlord's prior written consent shall be void
and of no effect. Landlord agrees to consent to any assignment by
Tenant to any corporation succeeding to substantially all the business
and assets of Tenant by merger, consolidation, purchase of assets or
otherwise, or to any assignment or subletting all the business and
assets of Tenant by merger, consolidation, purchase of assets or
otherwise, or to any assignment or subletting to a corporation which is
an affiliate of Tenant. Tenant shall not assign this Lease or sublet
all or any portion of the Demised Premises for any monthly rental which
is or could become, less than the Basic Rental from time to time due
hereunder without Landlord's consent, and any such act shall be void
and of no effect. Consent by Landlord to one or more assignments or
sublettings shall not operate as a waiver of Landlord's rights as to
any subsequent assignments and sublettings. Notwithstanding any
assignment or subletting, Tenant and any guarantor of Tenant's
obligations under this Lease shall at all times remain fully
responsible and liable for the payment of the rent herein specified and
for compliance with all of Tenant's other obligations under this Lease.
If an event of default, hereinafter defined, should occur while the
Demised Premises or any part thereof is then assigned or sublet,
Landlord, in addition to any other remedies herein provided or provided
by law, may at its option collect directly from such assignee or
sublessee all rents becoming due to Tenant under such assignment or
sublease and apply such rent against any such sums due to Landlord by
Tenant hereunder, and Tenant hereby authorizes and directs any such
assignee or sublessee to make such payments of rent directly to
Landlord upon receipt of notice from Landlord. No direct collection by
Landlord from any such assignee or sublessee shall be construed to
constitute a novation or a release of tenant or any guarantor of Tenant
from the performance of its obligations hereunder. Receipt by Landlord
of rent or additional payments from any assignee, sublessee or occupant
of the Demised Premises shall not be deemed a waiver of the covenant
contained in this Lease against assignment and subletting or a release
of Tenant under this Lease. The receipt by Landlord from any such
assignee or sublease obligated to make payments of rent or additional
payments shall be a full and complete release, discharge, and
acquittance to such assignee or sublessee to the extent of any amount
so paid to Landlord. Landlord is authorized and empowered, on behalf of
Tenant, to endorse the name of Tenant upon any check, draft, or other
instrument payable to Tenant evidencing payment of rent or additional
payments, or any part thereof, and to receive and apply the proceeds
therefrom in accordance with the terms hereof. Tenant shall not
mortgage, pledge or otherwise encumber its interest in this Lease or in
the Demised Premises.
b. If Tenant requests Landlord's consent to an assignment of this Lease
or subletting of all or a part of the Demised Premises, it shall submit
to Landlord, in writing, the name of the proposed assignee or subtenant
and the nature and character of the business of the proposed assignee
or subtenant, the term, use, rental rate and other particulars of the
proposed subletting or assignment, including, without limitation,
evidence satisfactory to Landlord that the proposed subtenant or
assignee is financially responsible and will immediately occupy and
thereafter use the Demised Premises (or any sublet portion thereof) for
the remainder of the Lease Term (or for the entire term of the
sublease, if shorter). Landlord shall have the option (to be exercised
within thirty (30) days from submission of Tenant's written request) to
cancel the applicable portion to be as of the commencement date stated
in the above-mentioned subletting or assignment. If Landlord elects to
cancel this Lease as stated, then the Lease Term, and the tenancy and
occupancy of the Demised Premises by Tenant thereunder, shall cease,
terminate, expire, and come to an end with respect to that portion of
the Demised Premises so assigned or sublet as if the cancellation date
were the original termination date of this Lease and Tenant shall pay
to Landlord all costs or charges which are the responsibility of Tenant
hereunder with respect to that portion of the Demised Premises so
assigned or sublet. Thereafter Landlord may lease the Demised Premises
or any other portion of the Building to the prospective subtenant or
assignee without liability to Tenant. If Landlord does not thus cancel
this Lease, other terms and provisions of subparagraph 10(a) hereof
will apply.
c. If Landlord consents to any subletting or assignment by Tenant as
hereinabove provided, and subsequently any rents received by Tenant
under any such sublease are in excess of the rent payable by Tenant
under this Lease, or any additional consideration is paid to Tenant by
the assignee under such assignment, the Landlord may, at its option,
either (i) declare such excess rents under any sublease or such
additional consideration for an assignment to be due and payable by
Tenant to Landlord as additional rent hereunder, or (ii) elect to
cancel this Lease as provided in subparagraph 10(b) hereof.
d. Landlord shall have the right to transfer, assign and convey, in
whole or in part, the Building and any and all of its rights under this
Lease, and in the event Landlord assigns its rights under this Lease,
Landlord shall thereby be released from any further obligations
hereunder, and Tenant agrees to look solely to such successor in
interest of the Landlord for performance of such obligations.
11. INSPECTION
Landlord, or its agents and representatives shall have the right to
enter into and upon any and all parts of the Demised Premises at all
reasonable hours with reasonable notice (or, if any emergency, at any
hour) to inspect same or clean or make repairs, alterations or
additions as Landlord may deem necessary, or to show the Demised
Premises to prospective tenants, purchasers or lenders, and Tenant
shall not be entitled to any abatement or reduction of rent by reason
thereof, or shall such be deemed to be an actual or constructive
eviction.
12. SUBORDINATION
This Lease and all rights of Tenant hereunder are subject and
subordinate to (i) any and all ground leases or underlying leases that
now or hereafter affect any portion of the Demised Premises, the
Building, or the land situated beneath the Building, and (ii) any and
all deeds of trust, mortgages and other instruments of security that
now or hereafter affect any portion of the aforesaid leases, the
Demised Premises, the Building, or the land situated beneath the
Buildings, and (iii) any and all increases, renewal, modifications,
consolidations, replacements and extensions of any such leases, deeds
of trust, mortgages or instruments of security, and all advances made
on the security of the foregoing. This provision is hereby declared by
Landlord and Tenant to be self-operative and no further instrument
shall be required to effect such subordination of this Lease. Tenant,
without expense to Landlord, shall, however, upon demand at any time or
times execute, acknowledge and deliver to Landlord any and all
instruments and certificates that in the judgement of Landlord may be
necessary or proper to confirm or evidence such subordination.
Notwithstanding the generality of the foregoing provisions of this
paragraph, Tenant agrees that any lessor or mortgagee described in this
paragraph shall have the right at any time to subordinate any such
ground leases, underlying leases, deeds of trust, mortgages or other
instruments of security to this Lease on such terms and subject to such
conditions as such lessor or mortgagee may deem appropriate in its
discretion. Tenant further covenants and agrees upon demand by
Landlord's mortgagee at any time, before or after the institution of
any proceedings for the foreclosure of any such deeds of trust,
mortgages or other instruments of security, or sale of the Building
pursuant to any such deeds of trust, mortgages or other instruments of
security, to attorn to such purchaser upon any such sale and to
recognize such purchaser as Landlord under this Lease, which covenant
shall survive any such foreclosure sale or trustee's sale. Tenant shall
upon demand at any time or times, before or after any such foreclosure
sale or trustee's sale, execute, acknowledge, and deliver to Landlord's
mortgagee any and all instruments and certificates that in the judgment
of Landlord's mortgagee may be necessary or proper to confirm or
evidence such attornment and Tenant hereby irrevocably authorizes
Landlord's mortgagee to execute, acknowledge and deliver any such
instruments and certificates on Tenant's behalf. Notwithstanding the
foregoing, Tenant shall be entitled to the continued use and occupancy
of the Demised Premises pursuant to the terms of this Lease so long as
Tenant is not in default (monetary or technical) herein.
13. LEASEHOLD IMPROVEMENTS
In preparing the Demised Premises for occupancy by Tenant, Landlord
shall be required to bear certain expenses of installing the items
indicated on Exhibit "C" attached hereto, only to the extent indicated
on said Exhibit "C". All installations, additions, and improvements to
the Demised Premises in excess thereof shall be installed at the sole
cost and expense of Tenant (which shall be payable on Landlord's
demand), but only in accordance with plans and specifications which
have been previously submitted to and approved in writing by Landlord,
such work to be performed only by Landlord or by contractors and
subcontractors approved in writing by Landlord, it being understood
that Tenant shall procure and maintain and shall cause such
contractors, subcontractors and other persons engaged by or on behalf
of Tenant to procure and maintain insurance coverage against such
risks, in such amounts and with such companies as Landlord may require
in connection with the installation of such improvements. Landlord has
made no representations as to the condition of the Demised Premises or
the Building or to remodel, repair or decorate, except as expressly set
forth herein.
14. MECHANIC'S LIENS
Tenant will not permit any mechanic's lien or liens to be placed upon
the Demised Premises or the Building during or after the Lease Term
caused by or resulting from any work performed, materials furnished or
obligation incurred by or at the request of Tenant, and in the case of
the filing of any such lien Tenant will promptly pay same. If default
in the payment thereof shall continue for twenty (20) days after
written notice thereof from Landlord to Tenant, Landlord shall have the
right and privilege at Landlord's option of paying the same or any
portion thereof without inquiry as to the validity thereof, and any
amounts so paid, including expenses and interest, shall be additional
rental hereunder due from Tenant to Landlord and shall be repaid to
Landlord immediately on demand accompanied by a ▇▇▇▇ therefor.
Notwithstanding the above, Tenant shall have the right to contest the
validity of claims after posting appropriate bond equal to one hundred
fifty percent (150%) of the claim.
15. SUBROGATION
Notwithstanding any provision in this Lease to the contrary, each party
hereto hereby waives any cause of action it might have against the
other party on account of any loss or damage that is insured against
under any insurance policy (to the extent that such loss or damage is
recoverable under such insurance policy) that covers the Building, the
Demised Premises, Landlord's or Tenant's fixtures, personal property,
leasehold improvements or business and which names Landlord or Tenant,
as the case may be, as a party insured, it being understood and agreed
that this provision is cumulative of Paragraph 9 hereof. Each party
hereto agrees that it will request its insurance carrier to endorse all
applicable policies waiving the carrier's rights of recovery under
subrogation or otherwise against the other party.
16. INSURANCE
Tenant shall procure and maintain throughout the Lease Term:
a. A policy or policies of insurance at its sole cost and expense
and in amounts of not less than a combined single limit of
$2,000, insuring Tenant and Landlord against any and all
liability to the extent obtainable for injury to or death of a
person or persons or damage to property occasioned by or
arising out of or in connection with the use, operation and
occupancy of the Demised Premises, and
b. Such other insurance with companies, on forms and in such
amounts as are acceptable to Landlord, insuring the Demised
Premises against such risks, casualties and hazards as shall
be reasonably required by Landlord.
Tenant shall furnish a certificate of insurance and such other
evidence satisfactory to Landlord of the maintenance of all
insurance coverage required hereunder, and Tenant shall obtain
a written obligation on the part of each insurance company to
notify Tenant and Landlord at least thirty (30) days prior to
cancellation or material change of any such insurance.
17. CONDEMNATION
If the whole or any substantial part of the Demised Premises, or if the
Building or any portion thereof which would leave the remainder of the
Building unsuitable for use as an office building comparable to its use
on the Commencement Date, shall be taken or condemned 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, then
Landlord may, at its option, terminate this Lease and the rent shall be
abated during the unexpired portion of this Lease, effective when the
physical taking of said Demised Premises shall occur. In the event this
Lease is not terminated, the rent for any portion of the Demised
Premises so taken or condemned shall be abated during the unexpired
term of this Lease effective when the physical taking of said portion
of the Demised Premises shall occur. All compensation awarded for any
such taking or condemnation, or sale proceeds in lieu thereof, shall be
the property of Landlord, and Tenant shall have no claim thereto, the
same being hereby expressly waived by Tenant, except for any portions
of such award or proceeds which are specifically allocated by the
condemning or purchasing party for the taking of or damage to trade
fixtures of Tenant, which Tenant specifically reserves to itself.
18. FIRE & OTHER CASUALTY
In the event that the Building or Demised Premises is totally destroyed
by fire, tornado or other casualty, or is damaged to the extent that
rebuilding or repairs cannot in Landlord's reasonable estimation be
completed within one hundred eighty (180) days after the date of such
damage, Landlord may, at its option, terminate this Lease, in which
event the rent shall be abated during the unexpired portion of the
Lease Term, effective with the date of occurrence of such damage. In
the event the Building or the Demised Premises are damaged by fire,
tornado or other casualty covered by Landlord's insurance, but only to
such extent that rebuilding or repairs can in the Landlord's estimation
be completed within two hundred forty (240) days after the date of such
damage, this Lease shall not terminate and Landlord shall within thirty
(30) days after the date of such damage commence to rebuild or repair
the Building and/or the Demised Premises and shall proceed with
reasonable diligence to restore the Building and/or the Demised
Premises to substantially the condition which existed immediately prior
to the happening of the casualty, except that Landlord shall not be
required to rebuild, repair or replace any part of the partitions,
fixtures and other improvements which may have been placed by Tenant or
other tenants within the Building or the Demised Premises. Landlord
shall allow an abatement of rent during the time a portion of the
Demised Premises are unfit for occupancy. In the event any mortgagee
under a deed of trust, mortgage or instrument of security on any
portion of any ground lease or underlying lease, the Building, or the
land situated beneath the Building should require that the insurance
proceeds be used to retire the debt secured by such document, Landlord
shall have no obligation to rebuild and this Lease shall terminate upon
notice by Landlord to Tenant. Except as provided herein, any insurance
which may be carried by Landlord or Tenant against loss or damage to
the Building or to the Demised Premises shall be for the sole benefit
of the party carrying such insurance and under its sole control.
19. HOLDING OVER
In the event of any holding over by Tenant after the expiration or
termination of this Lease, unless the parties hereto otherwise agree in
writing, such holding over shall constitute and be construed as a
tenancy at will, subject to termination by Landlord at any time, or by
Tenant at any time upon at least 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 the daily rent payable by
Tenant shall be equal to the daily rent in effect for the last month of
the Lease Term, fifty percent (50%) of such amount; provided, nothing
in this Paragraph 19 shall be construed as Landlord's consent for the
Tenant to hold over.
20. TAXES ON TENANT'S PROPERTY
Tenant shall be liable for all taxes levied or assessed against
personal property, furniture, improvements, additions or fixtures
placed by Tenant in the Demised Premises. lf 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 Demised
Premises, and Landlord elects to pay the taxes based on such increase,
Tenant shall pay to Landlord upon demand that part of such taxes for
which Tenant is primarily liable hereunder.
21. 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 rent herein
provided for, or any other sums payable to Landlord hereunder
(or under any other lease now or hereafter executed by Tenant
in connection with other space in the Building), and such
failure shall continue for a period of five (5) days from the
due date; and after written notice from Landlord; however,
Landlord shall not be obligated to give Tenant more than two
(2) such notices per calendar year.
b. Tenant shall fail to comply with any term, provision or
covenant of this Lease (or any other lease now or hereafter
executed by Tenant in connection with other space in the
Building), other than the payment of rent or other sums
payable by Tenant, and shall not cure such failure within
twenty (20) days after written notice thereof from Landlord to
Tenant; or
c. Tenant or any guarantors of Tenant's obligations hereunder
shall make an assignment for the benefit of creditors; or
d. Tenant or any guarantors of Tenant's obligations hereunder
file a petition under any section or chapter of the Bankruptcy
Code, 11 U.S.C. ss.101 et seq., as amended or under any
similar law or statute of the United States and/or any state
thereof; or if the interest of Tenant under this Lease shall
be levied on under execution or other legal process; or if any
petition shall be filed against Tenant or any such guarantor
to declare Tenant or such guarantor a bankrupt (or a similar
proceeding), or to delay, reduce or modify any debts or
obligations of Tenant or any such guarantor; or Tenant or any
such guarantor shall be adjudged bankrupt or insolvent.
e. A receiver or trustee shall be appointed for all or
substantially all of the assets of Tenant or any guarantor of
Tenant's obligations hereunder and such receivership shall not
be terminated or stayed within thirty (30) days; or
e. Tenant shall desert or vacate any substantial portion of the
Demised Premises for a period of five (5) days or more without
Landlord's prior written approval.
22. REMEDIES
Upon the occurrence of any event of default, Landlord shall have the
option to pursue any one or more of the following remedies, in addition
to all other rights and remedies provided at law or in equity, without
any notice or demand whatsoever:
a. Terminate this Lease in which event Tenant shall immediately
surrender the Demised Premises to Landlord, and if Tenant fails to do so,
Landlord may, without prejudice to any other remedy which it may have for
possession of the Demised Premises or arrearages in rent, enter upon and
take possession of the Demised Premises and expel or remove Tenant and any
other person who may be occupying the Demised Premises or any part thereof,
without being liable for prosecution or any claim or damages therefor; and
Tenant agrees to pay to Landlord on demand the amount of all loss and
damage which Landlord may suffer by reason of such termination, whether
through inability to relet the Demised Premises on satisfactory terms or
otherwise.
b. Enter upon and take possession of the Demised Premises and
expel or remove Tenant and any other person who may be
occupying the Demised Premises or any part thereof, by force
if necessary, without being liable for prosecution or any
claim for damages therefor, and if Landlord elects, relet the
Demised Premises and receive the rent therefor; and Tenant
agrees to pay to Landlord on demand any deficiency that may
arise by reason of such reletting.
c. Enter upon the Demised Premises without being liable for
prosecution or any claim for damages therefor, and do whatever
Tenant is obligated to do under this Lease; and Tenant agrees
that Landlord shall not be liable for any damages resulting to
the Tenant from such act ion.
d. In order to regain possession of the Demised Premises and to deny
Tenant access thereto, Landlord or its agent may, at the expense and
liability of the Tenant, alter or change any or all locks or other security
devices controlling access to the Demised Premises without posting.
Landlord shall have no obligation to provide Tenant a key or grant Tenant
access to the Demised Premises so long as Tenant is in default under this
Lease. Tenant shall not be entitled to recover possession of the Demised
Premises, terminate this Lease, or recover any actual, incidental,
consequential, punitive, statutory or other damages or award of attorneys'
fees, by reason of Landlord's alteration or change of any lock or other
security device and the resulting exclusion from the Demised Premises of
the Tenant or Tenant's agents, servants, employees, customers, licensees,
invitees or any other persons from the Demised Premises. Landlord may,
without notice, remove and either dispose or of store, at Tenant's expense,
any property belonging to Tenant that remains in the Demised Premises after
Landlord has regained possession
thereof.
No re-entry or taking possession of the Demised Premises by Landlord
shall be construed as or deemed as an election by Landlord to terminate
this Lease, unless a written notice of such intention signed by
Landlord and addressed to Tenant be delivered to Tenant.
Notwithstanding any such reletting or re-entry or taking possession,
Landlord may at any time thereafter elect to terminate this Lease for a
previous default. Pursuit of any of the foregoing remedies shall not
preclude pursuit of any of the other remedies provided for in this
Lease or any other remedies provided by law, nor shall pursuit of any
remedy provided for in this Lease constitute a forfeiture or waiver of
any rent due to Landlord hereunder or of any damages incurred by
Landlord by reason of the violation of any of the terms, provisions and
covenants herein contained. Landlord's acceptance of rent following an
event of default hereunder shall not be construed as Landlord's waiver
of such event of default. No waiver by Landlord of any violation or
breach of any of the terms, provisions and covenants herein contained
and no failure to give notice thereof shall be deemed or construed to
constitute a waiver of any other violation or default. The loss or
damage that Landlord may suffer by reason of termination of this Lease
or the deficiency from any reletting as provided for above shall
include the reasonable and necessary expense of repossession and any
repairs or remodeling undertaken by Landlord following possession
(limited to Building Standard). Should Landlord at any time terminate
this Lease for any default, in addition to any other remedy Landlord
may have, Landlord may recover from Tenant all damages Landlord may
incur by reason of such default, including the cost of recovering the
Demised Premises and the loss of rental for the remainder of the Lease
Term. Forbearance by Landlord to enforce one or more of the remedies
provided for in this Lease, or at law, upon an event of default shall
not be deemed or construed to constitute a waiver of such default or
remedies.
23. SURRENDER OF PREMISES
No act or thing done by the Landlord or its agents during the Lease
Term shall be deemed an acceptance of a surrender of the Demised
Premises, and no agreement to accept a surrender of the Demised
Premises shall be valid unless the same be made in writing and signed
by Landlord, and addressed to Tenant.
24. ATTORNEY'S FEES
Should it become necessary for Landlord or Tenant, because of a default
by Tenant or Landlord hereunder, to bring any action under this Lease
or to consult or place this Lease with an attorney concerning or for
the enforcement of any of Landlord's or Tenant's rights hereunder,
Tenant and Landlord agree to pay reasonable attorney's fees, court
cost, and administrative cost of the prevailing party.
25. LANDLORD'S LIEN
In addition to any statutory landlord's lien, Landlord shall have, and
Tenant does hereby grant to Landlord, at all times, a valid security
interest and lien to secure payment of all rent and other sums of money
becoming due hereunder from Tenant, and to secure payment of any
damages or loss which Landlord may suffer by reason of the breach by
Tenant of any covenant, agreement or condition contained herein, upon
all goods, equipment, fixtures, furniture, improvements and other
personal property of Tenant presently, or which may hereinafter be
situated within the Demised Premises, and all proceeds therefrom, and
such property shall not be removed from the Demised Premises 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 and all the covenants, agreements and
conditions hereof have been fully complied with and performed by
Tenant. In the event of a default by Tenant hereunder, Landlord may, in
addition to any other remedies provided elsewhere herein, enter upon
the Demised Premises and take possession of any and all goods,
equipment, fixtures, furniture, improvements and other personal
property of Tenant situated within the Demised Premises, without
liability for trespass or conversion, and sell the same at public or
private sale, with or without having such property at the sale, after
giving Tenant reasonable notice of the time and place of any public
sale or of the time after which any private sale is to be made, at
which sale the Landlord or its assigns may purchase any of such
property unless otherwise prohibited by law. Unless otherwise provided
by law, and without intending to exclude any other manner of giving
Tenant reasonable notice, the requirement of reasonable notice shall be
met if such notice is given in the manner prescribed in Paragraph 27 of
this Lease at least ten (10) days before the time of sale. The proceeds
from any such disposition, less any and all expenses connected with the
taking of possession, holding and selling of the property (including
reasonable attorneys' fees and legal expenses) shall be applied as a
credit against the indebtedness secured by the security interest and
lien granted in this paragraph. Any surplus shall be paid by Tenant or
as otherwise required by law, and Tenant shall pay any deficiencies
forthwith. Upon request by Landlord, Tenant agrees to execute and
deliver to Landlord a financing statement in form sufficient to perfect
the security interest of Landlord in the aforementioned property and
proceeds thereof under the provisions of the Uniform Commercial Code in
force in the State of Texas. Any statutory lien for rent is not hereby
waived, the security interest herein granted being in addition and
supplementary thereto.
26. QUIET ENJOYMENT
Provided Tenant is not in default (beyond any period given Tenant to
cure such default) in the performance of any of the terms, covenants
or conditions of this Lease on Tenant's part to be performed,
including the payment of rent or additional payments, Tenant shall
peaceably and quietly hold and enjoy the Demised Premises during the
Lease Term and any extensions thereof, free from interference or
disturbance by Landlord and other persons subject to the terms and
conditions of this Lease, provided, however, Landlord shall not be
liable for any such interference or disturbance by other persons, nor
shall Tenant be released from any of its obligations pursuant to this
Lease because of such interference or disturbance.
27. NOTICES
Each provision of this Lease or of any applicable governmental laws,
ordinances, regulations or other requirements with reference to the
sending, mailing, or delivery of any notice, or with reference to the
making of any payment by Tenant to Landlord, 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 hereunder shall be payable to
Landlord at the address set forth in the Basic Lease
information, or at such other address as Landlord may
specify from time to time by written notice delivered
in accordance herewith; and
b. Any notice or document required 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 (with or without return receipt
requested), addressed to the parties hereto at the
respective address set forth in the Basic Lease
information, or at such other address as has been
theretofore specified by written notice delivered
in accordance herewith.
28. FORCE MAJEURE
Whenever a period of time is herein prescribed for action to be taken
by Landlord, Landlord shall not be liable or responsible for, and there
shall be excluded from the computation of any such period of time, any
delays due to strikes, riots, acts of God, shortages of labor or
materials, war, governmental laws, regulations or restrictions, or any
other causes of any kind whatsoever which are beyond the control of
Landlord.
29. LEGAL INTERPRETATION
This Lease and the rights and obligations of the parties hereto shall
be interpreted, construed and enforced in accordance with the laws of
the State of Texas. If any clause or provision of this Lease is
illegal, invalid or unenforceable under present or future laws
effective during the Lease Term 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 that, in lieu of each clause or provision of this Lease
that is illegal, invalid or unenforceable, there be added as a part of
this Lease 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.
30. AMENDMENTS: BINDING EFFECT
This Lease may not be altered, changed or amended, except by an
instrument in writing signed by both parties hereto. No provision of
this Lease shall be deemed to have been waived by Landlord or Tenant
unless such waiver is in writing signed by Landlord or Tenant, and
addressed to Tenant or Landlord, nor shall any custom or practice
which may evolve between the parties in the administration of the
terms hereof be construed to waive or lessen the right of Landlord or
Tenant to insist upon the performance by Tenant or Landlord in strict
accordance with the terms hereof. The terms, provisions, 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, successors in interest, legal representatives, and
permitted assigns, except as otherwise herein expressly provided.
31. RULES AND REGULATIONS
Tenant and Tenant's employees, agents, licensees, and invitees will
comply fully with all requirements of the Building Rules and
Regulations attached hereto as Exhibit "B" and made a part hereof as
though fully set out herein. Landlord shall at all times have the
right to change such rules and regulations, to amend them, or to
promulgate other rules and regulations in such manner as Landlord
shall deem advisable for the safety, care and cleanliness of the
Building and related facilities, and for preservation of good order
therein, all of which rules and regulations, changes and amendments
will be forwarded to Tenant in writing and shall be carried out and
observed by Tenant. Notwithstanding the above, such changes shall not
unreasonably interfere with Tenant's authorized use. Tenant shall
further be responsible for compliance with such rules and regulations
by the employees, agents, licensees, visitors and invitees of Tenant.
32. SUBSTITUTION OF SPACE This section has been intentionally deleted.
33. EXHIBITS AND ATTACHMENTS
All exhibits, attachments, riders and addenda referred to in this Lease
or attached to this Lease are incorporated in this Lease and made a
part hereof for all intents and purposes; including, without
limitation:
Exhibit A - Demised Premises Exhibit B - Building Rules and
Regulations Exhibit C - Work Letter Agreement Exhibit D -
Legal Description Exhibit E - Parking Agreement Exhibit F -
Right of First Refusal
34. GENDER
Words of any gender used in this Lease shall be held and construed to
include any other gender, and words in the singular number shall be
held to include the plural, unless the context requires otherwise.
35. CAPTIONS
The captions contained in this Lease are for the convenience of
reference only and in no way limit or enlarge the terms and conditions
of this Lease.
36. PREPAYMENTS
Tenant shall have no right to make any payment of rent or any other
payments to Landlord hereunder more than thirty (30) days in advance
of the date such sums are due to Landlord.
37. TENANT'S REMEDIES
In the event Landlord defaults in the performance of any of its
obligations to Tenant hereunder, or breaches any warranty or
representation, express or implied, to Tenant in connection with this
Lease or Demised Premises, Tenant shall have no right of set-off
against payments due to Landlord hereunder and shall have no right to
terminate this Lease except as provided herein, and Tenant hereby
waives such remedies and any other right or remedies provided by law
or in equity, and Tenant's sole remedy shall be to bring suit against
Landlord for damages. Landlord shall have no personal liability to
Tenant for any such default or breach by Landlord, and Tenant
specifically agrees to look solely to Landlord's interest in the
Building for payment of any damages suffered by Tenant. Pending
resolution of any controversy hereunder, Tenant shall continue to pay
to Landlord all sums which are and become due to Landlord hereunder,
without deduction or set-off.
38. CHANGE OF BUILDING NAME
Landlord reserves the right at any time to change the name by which the
Building is designated.
39. ESTOPPEL CERTIFICATES
Tenant agrees to furnish from time to time when requested by Landlord,
the holder or any deed of trust, mortgage, or other instrument of
security, or by the lessor under any ground lease or underlying lease
covering all or any part of the Building or the improvements therein or
the land situated beneath the Building, or any interest of Landlord
therein, a certificate signed by Tenant confirming and containing such
factual certifications and representations deemed appropriate and
setting forth the facts as they exist by the party requesting such
certificate, and Tenant shall, within ten (10) days following receipt
of said proposed certificate from Landlord, return a fully executed
copy of said certificate to Landlord. In the event Tenant shall fail to
return a fully executed copy of such certificate to Landlord within the
foregoing ten-day period, then Tenant shall be deemed to have approved
and confirmed all of the terms, certifications and representations
contained in such certificate.
40. JOINT AND SEVERAL LIABILITY
If there is more than one person or entity constituting Tenant, the
obligations hereunder imposed upon Tenant shall be joint and several.
If there is a guarantor of Tenant's obligations hereunder, the
obligations hereunder imposed upon Tenant shall be the joint and
several obligations of Tenant and such guarantor, and Landlord need not
first proceed against Tenant before proceeding against such guarantor
nor shall any such guarantor be released from its guaranty for any
reason whatsoever, including without limitation, any amendment of this
Lease; waiver hereof of failure to give such guarantor any notices
hereunder.
41. CERTAIN RIGHTS RESERVED BY LANDLORD
Landlord shall have the following rights, exercisable without liability
and without notice to Tenant for damage or injury to property, persons
or business and without effecting an eviction, constructive or actual,
or disturbance of Tenant's use or possession or giving rise to any claim
for set-off or abatement of rent;
a. To decorate and to make repairs, alterations, additions,
changes or improvements, whether structural or otherwise, in
and about the Building, or any part thereof, and for such
purposes to enter upon the Demised Premises and, during the
continuance of any such work, to temporarily close doors,
entry ways, public space and corridors in the Building, to
interrupt or temporarily suspend Building services and
facilities and to change the arrangement and location of
entrances or passageways, doors and doorways, corridors,
elevators, stairs, toilets, or other public parts of the
Building, so long as the Demised Premises are reasonably
accessible.
b. To have and retain a paramount title to the Demised Premises
free and clear of any act of Tenant purporting to burden or
encumber them.
c. To grant to anyone the exclusive right to conduct any business
or render any service in or to the Building, provided such
exclusive right shall not operate to exclude Tenant from the
use expressly permitted herein or unreasonably interfere with
such use.
d. To prohibit the placing of vending or dispensing machines of
any kind in or about the Demised Premises without the prior
written permission of Landlord.
e. To have access for Landlord and other tenants of the Building
to any mail chutes located on the Demised Premises according
to the rules of the United States Postal Services.
f. To take all such reasonable measures as Landlord may deem advisable for the
security of the Building and its occupants, including without limitation,
the search of all persons entering or leaving the Building, the evacuation
of the Building for cause, suspected cause, or for drill purposes, the
temporary denial of access to the Building, and the closing of the Building
after normal business hours and on Saturdays, Sundays and holidays,
subject, however, to Tenant's right to admittance when the Building is
closed after normal business hours under such reasonable regulations as
Landlord may prescribe from time to time which may include by way of
example but not of limitation, that persons entering or leaving the
Building, whether or not during normal business hours, identify themselves
to a security officer by registration or otherwise and that such persons
establish their right to enter or leave the Building.
42. NOTICE TO LENDER
If the Demised Premises or the Building or any part thereof are at any
time subject to a first mortgage or a first deed of trust or other
similar instrument and this Lease or the rentals are assigned to such
mortgagee, trustee or beneficiary and the Tenant is given written
notice thereof, including the post office address of such assignee,
then the Tenant shall not take any action to terminate this Lease or
▇▇▇▇▇ rentals for any default on the part of the Landlord without
first giving written notice by certified or registered mail, return
receipt requested, to such assignee, specifying the default in
reasonable detail, and affording such assignee a reasonable
opportunity to make performance, at its election, for and on behalf of
the Landlord.
43. LOSS OR THEFT
Landlord shall not be responsible in any manner to Tenant, its agents,
employees, licensees or Invitees for any property lost or stolen from
the Demised Premises or any other portion of the
Building, the Building's garage or the land situated beneath the
Building.
44. PARKING
Landlord may make, modify and enforce rules and regulations relating to
the parking of automobiles in the parking garage adjacent to the
Building, and Tenant agrees to abide by such rules and regulations.
Tenant shall have the right to use the parking garage adjacent to the
Building in accordance with said rules and regulations, and the
provisions of Exhibit "E" attached. hereto
45. LANDLORD'S PERFORMANCE OF TENANT'S OBLIGATIONS
If Tenant fails to perform any one or more of its obligations
hereunder, in addition to the other rights of Landlord hereunder,
Landlord shall have the right but not the obligation to perform all or
any part of such obligations of Tenant. Upon receipt of a demand
therefor from Landlord, Tenant shall reimburse Landlord for (i) the
cost to Landlord of performing such obligations and reasonable profit
and overhead of not less than fifteen percent (15%) of such cost, plus
(ii) interest thereon at the maximum nonusurious rate of interest
permitted by law from the date such costs were incurred until paid in
full, or if applicable, law shall not provide a maximum nonusurious
rate of interest, then at a rate per annum of fifteen percent (15%).
46. RECORDATION
Tenant agrees not to record this Lease, or any instrument to which
this Lease may now or hereafter be attached.
47. SURRENDER OF DEMISED PREMISES
On the last day of the Lease Term, Tenant shall peaceably and quietly
surrender the Demised Premises to Landlord, in good order, repair and
clean condition at least equal to the condition when delivered to
Tenant, except for ordinary wear and tear and damage by fire or other
casualty which occurred through no fault or neglect of Tenant, its
agent, employees, invitees or visitors. If Tenant fails to do any of
the foregoing, Landlord, in addition to other remedies available to it
at law or in equity may, with or without notice, enter upon, reenter,
possess or repossess itself thereof, by summary proceedings, ejectment
or otherwise, and may dispossess and remove Tenant and all persons and
property from the Demised Premises; and Tenant waives any and all
damages or claims for damages as a result thereof. Such dispossession
and removal of Tenant shall not constitute a waiver by Landlord of any
claims by Landlord against Tenant.
48. LIGHT AND AIR This section is intentionally deleted.
49. MISCELLANEOUS
a. Any approval by Landlord or Landlord's architects and/or engineers of any
of Tenant's drawings, plans and specifications which are prepared in
connection with any construction of improvements in the Demised Premises
shall not in any way be construed or operate to bind Landlord or Tenant or
to constitute a representation or warranty of Landlord as to the adequacy
or sufficiency of such drawings, plans and specifications, or the
improvements to which they relate, for any use, purpose, or condition, but
such approval shall merely be the consent of Landlord as may be required
hereunder in connection with Tenant's construction of improvements in the
Demised Premises in accordance with such drawings, plans and
specifications.
b. Each and every covenant and agreement contained in this Lease
is, and shall be construed to be, a separate and independent
covenant and agreement.
c. There shall be no merger of this Lease or the leasehold estate
hereby created with the fee estate in the Demised Premises or
any part thereof by reason of the fact that the same person
may acquire or hold, directly or indirectly, this Lease or the
leasehold estate hereby created or any interest in this Lease
or in such leasehold estate as well as the fee estate in the
Demised Premises or any interest in such fee estate.
d. Neither Landlord nor Landlord's agents or brokers have made
any representations or promises with respect to the Demised
Premises, the Building or the land situated beneath the
Building, except as herein expressly set forth, and no rights,
easements or licenses are acquired by Tenant by implication or
otherwise except as expressly set forth in the provisions of
this Lease.
e. The submission of this Lease to Tenant shall not be construed
as an offer, nor shall Tenant have any rights with respect
thereto unless and until Landlord shall, or shall cause its
managing agent to, execute a copy of this Lease and deliver
the same to Tenant.
50. NON-DISCLOSURE CLAUSE
Tenant agrees not to disclose any terms of its Lease to other tenants
in this building or to the general public.
51. ENVIRONMENTAL MATTERS
a. Tenant, at Tenant's expense, hereby covenants and agrees to comply with all
Applicable Environmental Laws (as hereinafter defined). The term
"Applicable Environmental Laws" shall mean and include the collective
aggregate of the following: Any law, statute, ordinance, rule, regulation,
order of determination of any governmental authority or any board of fire
underwriters (or other body exercising similar functions), or any
restrictive covenant or deed restriction (recorded or otherwise) affecting
the Demised Premises pertaining to health, safety, or the environment,
including without limitation, all applicable zoning ordinances and building
codes, flood disaster laws and health, safety, and environmental laws and
regulations pertaining to health, safety, or the environment, including
without limitation, the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, the Resource, Conservation and Recovery Act of
1976, the Superfund Amendments and Reauthorization Act of 1986, the
Occupational Safety and Health Act, the Texas Water Code, the Texas Solid
Waste Disposal Act, the Texas Workers' Compensation Laws, and any federal,
state, or municipal laws, ordinances, regulations, or common law which may
now or hereafter require removal of Hazardous Materials (as hereinafter
defined) or Hazardous Materials Contamination (as hereinafter defined) from
the Demised Premises or impose any liability on Landlord to Hazardous
Materials or Hazardous Materials Contamination on the Demised Premises. The
provisions of this paragraph shall survive the termination of this Lease.
b. Tenant agrees to give notice to Landlord immediately upon
Tenant's acquiring knowledge of the presence of any Hazardous
Materials on the Demised Premises or of any Hazardous
Materials Contamination with a full description thereof.
Without limiting the indemnity set forth below, if the
presence of any Hazardous Materials or any Hazardous Materials
Contamination on the Demised Premises caused by Tenant results
in any contamination of the Demised Premises, Tenant shall
promptly take all actions at its sole expense as are necessary
to return the Demised Premises to the condition existing prior
to the introduction of any such Hazardous Materials or
Hazardous Materials Contamination to the Demised Premises.
Notwithstanding the above, Landlord's approval of such action
shall first be obtained, which approval shall not be
unreasonably withheld so long as such actions would not
potentially have any material adverse long term or short term
effect on the Demised Premises.
"Hazardous Materials" shall mean:
i. Any "hazardous waste as defined by the Resource Conservation and Recovery
Act of 1976 (42 ▇.▇.▇.▇▇. 6901 et -- seq.), as amended from time to time
and, regulations promulgated thereunder;
ii. Any "hazardous substance" as defined by the
Comprehensive Environmental Response, Compensation
and Liability Act of 1980 (42 U.S.C. ss. 9601 et
seq.) ("CERCLA"), as amended from time to time, and
regulations promulgated thereunder, and as defined by
Section 311 of the Federal Water Pollution Control
Act (33 U.S.C. ss. 1317;
iii. Asbestos;
iv. Polychlorinated biphenyls
v. Any substance the presence of which on the Premises
is prohibited by any applicable governmental
requirements; and
vi. Any substance which by any applicable governmental
requirements requires special handling or
notification of any federal, state, or local
governmental entity in its collection, storage,
treatment, or disposal.
"Hazardous Materials Contamination" shall mean the
contamination (whether presently existing or hereafter
occurring) of the improvements, facilities, soil, groundwater,
air or other element on or of the leased premises by Hazardous
Materials, or the contamination of the buildings, facilities,
soil, groundwater, air, or other elements on or of any other
property as a result of Hazardous Materials emanating from the
Demised Premises after the date of this Lease.
c. If Tenant breaches this obligation, the Tenant shall indemnify, defend, and
hold Landlord harmless from any and all claims, judgment, damages,
penalties, fines, costs, liabilities or losses (including, without
limitation, diminution in value of the Demised Premises, damages for the
loss or restriction on use of rentable or usable space or of any amenity of
the Demised Premises, damages arising from any adverse impact on marketing
of space, and sums paid in settlement of claims, attorneys' fees,
consultant fees and expert fees) which arise during or after the Lease Term
as a result of such contamination. This indemnification of Landlord by
Tenant includes, without limitation, costs incurred in connection with any
investigation of site condition or any clean-up, remedial, removal or
restoration work required by any federal, state, or local governmental
agency or potential subdivision because of Hazardous Material present in,
on, or under the soil or surface as ground water on, about, or under the
Demised Premises. The foregoing indemnity shall survive the expiration or
earlier termination of this Lease.
d. Landlord and its agents shall have the right, but not the
duty, to inspect the Demised Premises at any time to determine
whether Tenant is complying with the terms of this Lease. If
Tenant is not in compliance with this Lease, Landlord shall
have the right to immediately enter upon the Demised Premises
to remedy any contamination caused by Tenant's failure to
comply with the terms of this Lease notwithstanding any other
provisions of this Lease. Landlord shall use its best efforts
to minimize interference with Tenant's business, but shall not
be liable for any interference caused thereby.
e. Any default under this Paragraph shall be a material default
enabling Landlord to exercise any of the remedies set forth in
this Lease.
f. To the best of Landlord's knowledge no asbestos is present in
the building and no contaminants or hazardous materials exist
in or on the Project. Landlord agrees to the best of its
ability and within reason to comply, at its sole expense, with
all environmental laws applicable to the Project, including,
without limitation, those applicable to any systems or
portions of the Leased Premises for which Landlord has the
maintenance obligation.
52. COMPLIANCE WITH LAWS AND REGULATIONS
a. Except with respect to the ADA (as hereinafter defined) and
the Texas Act (as hereinafter defined), to the best of
Landlord's knowledge, as of the Commencement Date of this
Lease, the Demised Premises will be in compliance with all
applicable laws, ordinances, orders, rules and regulations (of
state, federal, municipal and other agencies or bodies having
any jurisdiction thereof), pertaining to the Demised Premises.
b. Tenant, at Tenant's sole cost and expense, covenants and
agrees to comply with all applicable laws, ordinances, orders,
rules and regulations (of state, federal, municipal and other
agencies or bodies having any jurisdiction thereof), present
and future, with regard to the use, condition or occupancy of
the Demised Premises.
53. AMERICANS WITH DISABILITIES ACT AND TEXAS ARCHITECTURAL BARRIER STATUTE
The parties acknowledge that (i) Title III of the Americans With
Disabilities Act of 1990 and the regulations and rules promulgated
thereunder, as all of the same may be amended and supplemented from
time to time (collectively referred to herein as the "ADA"), and (ii)
the Texas Architectural Barrier Statute and the regulations and rules
promulgated thereunder, as all of the same may be amended and
supplemented from time to time (collectively referred to herein as the
"Texas Act"), establish requirements for accessibility and barrier
removal, and that such requirements may or may not apply to the Demised
Premises, and the real property of which the Demised Premises are a
part. Tenant acknowledges and fully understands that Landlord is making
no representation or warranty whatsoever (express or implied) that the
Demised Premises is in compliance with the ADA or the Texas Act. The
parties hereby agree that: (a) Landlord shall be responsible for ADA
and Texas Act compliance in the common areas of the Building, and (b)
Tenant shall be responsible for ADA and Texas Act compliance within the
Demised Premises.
Dated as of the date first above written.
TENANT:
WOODHAVEN HOMES, LTD.
By: ______________________________
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Title: President
LANDLORD:
▇▇▇▇▇▇▇ HOLDINGS, LTD., ACTING BY AND THROUGH
ITS AGENT, GAEDEKE ▇▇▇▇▇▇▇, L.L.C.
By: ______________________________
▇. ▇. ▇▇▇▇▇▇▇
President/C.E.O.
EXHIBIT "A"
DEMISED PREMISES
[GRAPHIC OMITTED]
AMENDMENT TO LEASE
GAEDEKE ▇▇▇▇▇▇▇
A TEXAS LIMITED LIABILITY COMPANY
April 7, 1998
Mr. ▇▇▇▇ ▇▇▇▇▇
Woodhaven Homes, Ltd.
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Re: First Amendment to Lease Agreement by and between ▇▇▇▇▇▇▇ Holdings II, Ltd.
as Landlord and Woodhaven Homes, Ltd., as Tenant
Dear ▇▇▇▇:
Enclosed please find one fully executed Amendment as referenced above.
▇▇▇▇, we appreciate having you as a Tenant at Oak Lawn Plaza and look forward to
serving you in the years to come. Should you have any questions, please do not
hesitate to call me at (214) ▇▇▇- ▇▇▇▇, ext. 222.
Sincerely,
GAEDEKE ▇▇▇▇▇▇▇, L.L.C. As AGENT FOR
▇▇▇▇▇▇▇ HOLDINGS II, LTD.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Director of Leasing
MJH/tw
Enclosure
CORPORATE 3710 ▇▇▇▇▇▇▇ #▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
TEL 214.52B.BBB3 FAX 214.52B.B05B
SOUTHEAST REGION: ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ #▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
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OTHER LOCATIONS: ATLANTA BOCA RATON FT. LAUDERDALE ORLANDO
FIRST AMENDMENT TO LEASE AGREEMENT
STATE OF TEXAS ss.
ss.
COUNTY OF DALLAS ss.
This First Amendment to Lease Agreement ("Amendment")
is dated April 3 ,1998, between ▇▇▇▇▇▇▇ HOLDINGS II, LTD.,
SUCCESSOR IN INTEREST TO ▇▇▇▇▇▇▇ HOLDINGS, LTD., hereinafter
referred to as "Landlord," and WOODHAVEN HOMES, LTD.,
hereinafter referred to as "Tenant" is based on the following:
WITNESSETH:
The following provisions form a part of and constitute
the basis of this Amendment:
1. Landlord, under that certain Standard Office
Building Lease dated May 29, 1996,
(hereinafter referred to as the "Lease
Agreement") leased to Tenant approximately
7,703 rentable square feet (hereafter referred
to as the "Demised Premises") known as Suite
550 in the building known as Oak Lawn Plaza
and located at ▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇. Terms defined in the Lease
Agreement when used herein, shall have the
same meaning as are ascribed to them in the
Lease Agreement, except as otherwise defined
herein.
2. Landlord and Tenant desire to amend the Lease
Agreement as hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the premises set forth above and
the mutual benefits to accrue to each of the parties hereunder, it is
hereby agreed as follows: Effective the earlier of occupancy or May 1,
1998, the Lease Agreement is hereby amended as follows:
I.EXPANSION. Tenant shall lease Suite 420 ("Expansion Space") containing 2,147
rentable square feet for a total of 9,850 r.s.f. as shown on Exhibit "A"
attached hereto which replaces Exhibit "A" in the Lease Agreement.
2. BASIC RENTAL.
05/01/98 - 06/30/98
07/01/98 - 08/31/00
$10,708.00 per month $128,496.00 per year
$11,029.00 per month $132,348.00 per year
3. PARKING. Exhibit "E" in the Lease Agreement is
deleted and replaced by Exhibit "B" attached
hereto.
4. TENANT IMPROVEMENT. Tenant shall receive a
Tenant Improvement Allowance as shown on
Exhibit "C" attached.
5. SECURITY DEPOSIT. Tenant hereby agrees to pay Landlord a security
Thousand six hundred and eighty four dollars ($2,684.00) payable on the
Amendment is executed by Tenant. Tenant's total security deposit will be
$10,708.00
PREPAID RENT. $2,684.00 due and payable upon execution of the
Amendment as the first full month's rental for Suite 420.
All other terms and conditions of the original Lease
Agreement shall remain the same, and are hereby acknowledged
by Tenant to be in full force and effect. The provisions of
this First Amendment shall serve to supplement and amend the
Lease as set forth herein. In the event of a conflict between
the provisions of
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