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Exhibit 10.6
LEASE AGREEMENT
NATIONAL BANCSHARES CORPORATION OF TEXAS
As Tenant
and
COMMERCE PLAZA INVESTORS, L.P.
As Landlord
July 25, 1995
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BASIC LEASE INFORMATION
Tenant: National Bancshares Corporation of Texas,
a Texas Corporation
Notification Address: P. O. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
Landlord: Commerce Plaza Investors, L.P.
a Delaware Limited Partnership
Notification Address: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Leasing Director
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
Building: Commerce Plaza office building,
located at ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
Premises: Suite No. 875, containing 1,176 square feet of Net Rentable Area in the
Building, as shown on the floor plan attached to this Lease as Exhibit A.
Term: The period beginning on the Commencement Date and ending at 6:00 p.m. on the
last day of the twenty-fourth (24th) full calendar month after the
Commencement Date. Thus, unless the Commencement Date falls on the first day
of a calendar month, the Term will also include the initial partial calendar
month immediately following the Commencement Date.
Monthly
Base Rent: Months(1) Rate(2) Amount(3) Installment
------- ---- ---------- -------
1 to 24 $9.00 $10,584.00 $882.00
--- -- ---- --------- ------
__ to __ $____ $_________ $______
__ to __ $____ $_________ $______
__ to __ $____ $_________ $______
__ to __ $____ $_________ $______
__ to __ $____ $_________ $______
__ to __ $____ $_________ $______
__ to __ $____ $_________ $______
__ to __ $____ $_________ $______
__ to __ $____ $_________ $______
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(1)Full calendar months after the Commencement Date. For any initial partial
calendar month, the monthly
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installment of Base Rent will be the same as in the first full calendar month
after the Commencement Date.
(2)Per square foot of Net Rentable Area per annum.
(3)Expressed on an annualized basis even though the applicable period may be
longer or shorter than twelve months.
Security Deposit: $882.00
Base Year: Calendar year 1995
Operating Costs
Base Rate: The rate of Operating Costs per square foot of Net Rentable Area in the
Building for the Base Year.
Tax Costs Base Rate: The rate of Tax Costs per square foot of Net Rentable Area in the Building for
the Base Year.
Utilities Costs
Base Rate: The rate of Utilities Costs per square foot of Net Rentable Area in the
Building for the Base Year.
Tenant Improvements: Any leasehold improvements installed in the Premises as of the date of this
Lease, together with (and as altered by) the Work Letter Improvements, if any.
Broker: ▇. ▇. ▇▇▇▇▇▇▇ Commercial Real Estate Services
Guarantor: None
The Basic Lease Information is part of the Lease. Each term in the left column
is used throughout the Lease as a defined term with the meaning stated in the
Basic Lease Information.
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LEASE AGREEMENT
1. PREMISES AND TERM
1.1 DEMISE OF PREMISES. Landlord demises to Tenant the Premises located
in the Building, which is situated on the land described in Exhibit B (together
with the Building and other improvements now or hereafter located thereon, the
"Property"), and covenants that subject to the terms and conditions of this
Lease, Tenant will quietly have, hold, and enjoy the Premises so long as Tenant
pays Rent as required by this Lease and otherwise performs and complies with
this Lease. Tenant accepts the Premises from Landlord in an "as is" condition
(save only for the Work Letter Improvements, if any) without warranty of any
kind except as may be expressly stated to the contrary in this Lease, and
agrees to surrender the Premises to Landlord in the condition required by this
Lease on the expiration of the Term or earlier termination of this Lease. So
long as Tenant occupies the Premises, Tenant will have the nonexclusive right
to use the lobbies, walks, parking facilities, drives, and other areas of the
Property made available by Landlord from time to time for the common use of
occupants of the Building.
1.2 TERM. The Term will commence on the date (the "Commencement Date")
that is the earlier of (a) the Substantial Completion Date (as defined in the
Work Letter attached as Rider 1), or (b) the date on which Tenant first begins
to occupy the Premises; and unless terminated earlier pursuant to this Lease,
the Term will expire at the time specified in the Basic Lease Information. On
receipt from Landlord, Tenant must execute a declaration in the form of Exhibit
C to confirm the date upon which the Commencement Date occurred. Pending
resolution of any objections Tenant may have to the date reflected as the
Commencement Date in the declaration, Rent must paid based on that date; and on
resolution of Tenant's objections, an appropriate reduction or increase
(without interest or penalty) be made in the next Monthly Rent Installment due.
1.3 AREA CALCULATIONS. All calculations of Usable Area and Net Rentable
Area under this Lease will be made in accordance with the following
definitions:
(a) "Usable Area" means: (i) in the case of a full-floor space to
be occupied by a single tenant, the entire area of the floor measured from the
inside surface of the outer pane of glass and extensions of the plane thereof
in non-glass areas to the inside surface of the opposite outer pane of glass
and extensions of the plane thereof in non- glass areas, including all On-Floor
Common Area and excluding only Service Area and General Common Area; and (ii)
in the case of space on a floor to be occupied by more than one (1) tenant, the
area enclosed by the inside surface of the outer pane of glass and extensions
of the plane thereof in non-glass areas and by demising walls (measured from
the midpoint of demising walls), excluding only Service Area, On-Floor Common
Area, and General Common Area. No deduction will be made for
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columns or projections necessary to the Building.
(b) "Net Rentable Area" means: (i) in the case of a full-floor
space to be occupied by a single tenant, the Usable Area of the floor plus an
allocation of General Common Area; and (ii) in the case of space on a floor to
be occupied by more than one (1) tenant, the Usable Area of the space plus an
allocation of both General Common Area and On-Floor Common Area.
(c) "Service Area" means an area within vertical penetrations such
as (and measured from the midpoint of the walls enclosing) Building stairs,
elevator shafts, fire towers, flues, vents, stacks, vertical pipe shafts, and
vertical ducts, but excluding structural columns and areas for the specific use
of any tenant (such as special stairs or elevators).
(d) "On-Floor Common Area" means the total area on a floor of a
Building located within (and measured from the midpoint of the walls enclosing
or inside surface of the outer pane of glass enclosing) public corridors,
elevator foyers, rest rooms, mechanical rooms, janitor closets, telephone,
electrical and equipment rooms, and other similar facilities for the use of all
tenants on that floor. The total On-Floor Common Area of a floor to be
occupied by more than one (1) tenant will be allocated to the Net Rentable Area
of a particular space on that floor in proportion to the Usable Area of that
space relative to the total Usable Area on that floor.
(e) "General Common Area" means the total area of the Building
within (and measured from the midpoint of the walls enclosing or from the
inside surface of the outer pane of glass enclosing, or extensions of the plane
thereof in non-glass areas) the Building's elevator machine rooms, main
mechanical rooms, loading dock facilities, telephone switch rooms, main
electrical rooms, public lobbies, engineering, security, postal and cleaning
areas, and other areas not leased or held for lease within the Building, but
which are necessary or desirable for the proper utilization of the Building
generally or to Provide services to the Building generally. The total General
Common Area of the Building will be allocated to the Net Rentable Area of a
particular space in proportion to the Usable Area of that space relative to the
total Usable Area of the Building.
1.4 ADJUSTMENT OF NET RENTABLE AREA. The Net Rentable Area of the Premises
will not be adjusted as a result of variations resulting from initial
construction of any Work Letter Improvements. If the Net Rentable Area of the
Premises or Building changes for any reason, any Rent calculations based on Net
Rentable Area will be adjusted accordingly effective as of Tenant's receipt of
written notice from Landlord of the adjustment and the reason therefor. Tenant
may object to errors in the adjustment by Landlord only if Tenant notifies
Landlord in writing within thirty (30) days
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thereafter of the specific errors made by Landlord. Pending resolution of any
such objections by Tenant, Rent must be paid as adjusted by Landlord based on
the change in Net Rentable Area; and on resolution of Tenant's objections, an
appropriate reduction or increase (without interest or penalty) will be made in
the next Monthly Rent Installment due.
1.5 RELOCATION OF THE PREMISES. Upon written notice to Tenant, Landlord
may substitute for the Premises other space in the Building of substantially
the same Net Rentable Area as the Premises with leasehold improvements that, as
nearly as practical, are substantially the same as the Tenant Improvements
initially installed in the Premises. Within sixty (60) days after Landlord's
written request, Tenant must execute an amendment to this Lease whereby all
references to the Premises in this Lease are changed to refer to the space
substituted for the Premises, Base Rent is adjusted to reflect any resulting
change in Net Rentable Area, and all other provisions of this Lease remain
unchanged. Landlord will reimburse Tenant for all reasonable and documented
costs incurred to third parties as a direct and necessary result of Tenant's
relocation to the space substituted for the Premises, including expenses for
moving property, reconnecting equipment, and reprinting stationery. Landlord
agrees to relocate Tenant's furnishings and equipment during nonbusiness hours
and over the course of a weekend.
1.6 ALTERATIONS OF THE PROPERTY. Landlord may (without unreasonable
interference with Tenant's use of the Premises) make alterations, additions, or
improvements to the Building and other parts of the Property from time to time,
enter upon the Premises as necessary therefor, and close or restrict access to
portions of the Building or other portions of the Property for any reason.
Landlord may change the name or address of the Building.
2. RENT
2.1 PAYMENT OF RENT. On or before the first day of each calendar month
throughout the Term, Tenant must pay Landlord in advance without demand or
notice the "Monthly Rent Installment" consisting of the total of (a) the
monthly installment of Base Rent specified in the Basic Lease Information for
the applicable calendar month, (b) one-twelfth (1/12th) of the Base Rent
Adjustment as estimated by Landlord for the applicable calendar year, and (c)
any Monthly Parking Charge. On Tenant's execution of this Lease, Tenant must
pay Landlord one (1) month's Base Rent in the amount of the monthly installment
of Base Rent in effect for the first calendar month of the Term to be applied
to the First full Monthly Rent Installment. If the Commencement Date falls on
other than the first day of a calendar month, then on the Commencement Date
Tenant must pay Landlord a prorated portion of one (1) month's Monthly Rent
Installment based on the number of days elapsed during the Term in that month.
All sums of money payable by Tenant to Landlord
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pursuant to this Lease constitute rent, and all such sums, together with the
Monthly Rent Installments, are referred to generically in this Lease as "Rent."
Except as expressly stated to the contrary in this Lease, all Rent is payable
to Landlord without abatement, set-off, or counterclaim at Landlord's
Notification Address (or at any other address that Landlord may designate in
writing from time to time).
2.2 BASE RENT ADJUSTMENT. The "Base Rent Adjustment" for each calendar
year will equal the product of (a) the Net Rentable Area of the Premises, times
(b) a rate per annum per square foot of Net Rentable Area equal to the sum of
(i) the excess, if any, of the rate of Operating Costs per square foot of Net
Rentable Area in the Building for the applicable calendar year over the
Operating Costs Base Rate, (ii) the excess, if any, of the rate of Tax Costs
per square foot of Net Rentable Area in the Building for the applicable
calendar year over the Tax Costs Base Rate, and (iii) the excess, if any, of
the rate of Utilities Costs per square foot of Net Rentable Area in the
Building for the applicable calendar year over the Utilities Costs Base Rate.
Effective on any change in the Net Rentable Area of the Premises or the
Building in accordance with this Lease, the calculation of the Base Rent
Adjustment will change accordingly. The Base Rent Adjustment will never lower
Base Rent below the amount specified in the Basic Lease Information. Prior to
January 1 of each calendar year after the Base Year (or as soon thereafter as
reasonably practical), Landlord will provide an estimate of the Base Rent
Adjustment for the forthcoming calendar year, and the Monthly Rent Installments
due thereafter will be adjusted to reflect the Base Rent Adjustment so
estimated by Landlord. By June 1 of each calendar year, or as soon thereafter
as reasonably practical, Landlord will furnish to Tenant a statement (the
"Annual Statement") showing in reasonable detail the calculation of the Base
Rent Adjustment for the immediately preceding calendar year and comparing the
actual Base Rent Adjustment to the estimated Base Rent Adjustment actually paid
by Tenant. If the estimated Base Rent Adjustment paid is less than the actual
Base Rent Adjustment reflected on the Annual Statement, Tenant must pay
Landlord the amount of the deficit in a lump sum no later than thirty (30) days
after receipt of the Annual Statement. If the estimated Base Rent Adjustment
paid is greater than the actual Base Rent Adjustment reflected on the Annual
Statement, Landlord will allow Tenant equal monthly credits against the Monthly
Rent Installments due for the remainder of the then current calendar year in an
aggregate amount equal to the surplus, or if Landlord so chooses, Landlord will
pay Tenant the amount of the surplus in a lump sum within thirty (30) days
after delivery of the Annual Statement. In calculating any surplus or deficit
owed for any calendar year in which the Term expires, the Base Rent Adjustment
will be prorated in proportion to the number of days elapsed during the Term in
that calendar year.
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2.3 OPERATING COSTS. "Operating Costs" means all expenses and costs of
any kind incurred by Landlord in connection with the ownership, operation,
management, maintenance, or repair of the Property other than Tax Costs,
Utilities Costs, and Excluded Costs. Operating Costs include, without
limitation, all of the following:
(a) Wages, salaries, fees, and all related expenses (including
without limitation, taxes, insurance, and benefits) of all personnel engaged in
the operation, management, maintenance, or repair of the Property.
(b) Costs of supplies, tools, equipment, and other materials,
including replacement parts and equipment, whether purchased, leased, used, or
consumed in the operation, maintenance, or repair of the Property.
(c) Costs of maintenance or service agreements for the Property,
including, without limitation, access control service, window cleaning, traffic
control, janitorial service, landscape maintenance, and elevator maintenance.
(d) Costs of operation, maintenance, or repair of interior and
exterior common or public areas of the Property, including, without limitation,
sidewalks, driveways, parking areas, and landscaping.
(e) Legal or accounting costs for the Property, including, without
limitation, a reasonable allocation of off- site costs and costs of annual
audits of Operating Costs, Tax Costs, and Utilities Costs by certified public
accountants, if performed.
(f) Costs of insurance carried by Landlord relating to the Property,
including, without limitation, fire and casualty insurance (with extended,
all-risk, or other coverages), rental loss or business interruption insurance,
comprehensive or commercial general liability insurance, and other commercially
reasonable insurance carried by Landlord, plus the cost of all deductible
payments made by Landlord.
(g) Assessments, fees, or similar charges for the Property's share of
the cost of operating and maintaining common areas and facilities of any office
or business park in which the Property is located.
(h) Costs of complying with Laws applicable to the operation,
management, maintenance, or repair of the Property, including, without
limitation, costs for licenses, permits, and inspection fees.
(i) Amortization in accordance with generally accepted accounting
principles of capital expenditures and reasonable financing charges for items
that are primarily for the purpose of
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reducing or avoiding increases in Operating Costs in Landlord's good faith
estimate, (ii) promoting safety, or (iii) complying with Laws imposed after the
initial construction of the Building. In addition to the foregoing, Landlord
may include in Operating Costs unamortized capital expenditures that in the
aggregate are less than two percent (2%) of the estimated amount of the total
of Operating Costs, Tax Costs, and Utilities Costs for the applicable calendar
year.
(j) Management fees and costs of a Property management office in the
Building or an allocation of the costs of an off-site central office maintained
for management of the Property.
2.4 TAX COSTS. "Tax Costs" means all of the following that are not
Excluded Costs and that are imposed by Law on the Property or on Landlord in
connection with the ownership or operation of the Property: (a) general and
special ad valorem and other taxes, assessments, and charges; (b) any future
capital levy, rent, or other tax, assessment, or charge imposed in place of or
in addition to the ad valorem and other taxes, assessments, or other
governmental charges presently in effect; and (c) consulting, accounting, legal
fees, and other costs resulting from any challenge of ad valorem or other
taxes, assessments, or other governmental charges. If the Property is not
separately assessed, Landlord will allocate Tax Costs to the Property on a
reasonable basis.
2.5 UTILITIES COSTS. "Utilities Costs" means all of the following that
are not Excluded Costs and that are incurred by Landlord in connection with the
ownership or operation of the Property: (a) costs and expenses for consumption
or use of public or private utility services for the Property, including,
without limitation, water, steam, sewer, waste disposal, gas,
telecommunications, and electricity; and (b) amortization in accordance with
generally accepted accounting principles of capital expenditures and reasonable
financing charges for items that are primarily for the purpose of (i) reducing
or avoiding increases in Utilities Costs in Landlord's good faith estimate, or
(ii) complying with Laws imposed after the initial construction of the
Building.
2.6 EXCLUDED COSTS. "Excluded Costs" means all of the following:
(a) Except as expressly included in the definitions of Operating
Costs and Utilities Costs, capital expenditures as determined in accordance
with generally accepted accounting principles, depreciation and amortization,
and interest and other finance charges.
(b) Costs for the initial construction of the Property or for
improvements to leased premises.
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(c) Costs for the sale or financing of the Property, including
brokerage commissions, attorneys' and accountants' fees, closing costs, title
insurance premiums, and other similar costs.
(d) Leasing commissions, attorneys' fees, and other expenses in
connection with negotiations for leases or disputes with particular tenants.
(e) Repair or replacement costs paid with proceeds of insurance or
condemnation.
(f) Costs for which Landlord is reimbursed by any tenant or other
party, including, without limitation, costs for furnishing any utilities or
services in addition to or in excess of those included in Building Standard
Services.
(g) Taxes attributable to the personal property or trade fixtures of
any tenant.
(h) Utilities or other costs that are payable directly to a third
party by any tenant.
(i) Taxes on net income, death taxes, franchise taxes, and taxes in
connection with any change of ownership of the Property.
(j) Penalties for late payment of taxes, utility bills, or other
amounts owed by Landlord except to the extent Landlord was in good faith
contesting payment.
2.7 ACCOUNTING PRINCIPLES. Operating Costs, Tax Costs, and Utilities Costs
will be computed on an accrual basis in accordance with generally accepted
accounting principles consistently applied. Tax Costs will accrue in the
calendar year levied or assessed except for Tax Costs attributable to special
taxes and assessments that are payable in installments, which will accrue only
to the extent of the installment payable each calendar year. Operating Costs,
Tax Costs, and Utilities Costs will be calculated on an annualized basis for a
full calendar year. In calculating Operating Costs, Tax Costs, and Utilities
Costs, costs that vary with occupancy (such as janitorial service and
utilities) will be appropriately adjusted to reflect the amount that such
variable costs would have been with occupancy at the greater of ninety-five
percent (95%) of the Net Rentable Area of the Building or the actual occupancy
of the Building throughout the applicable calendar year. All rates per square
foot of Net Rentable Area in the Building involved in determining the Base Rent
Adjustment will be calculated based on the greater of ninety-five percent (95%)
of the Net Rentable Area of the Building or the actual occupancy of the
Building throughout the applicable calendar year.
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2.8 LATE PAYMENT OF RENT. Past-due Rent will bear interest from the date
due until paid at the rate per annum that is the lesser of (a) five percent
(5%) in excess of the "prime rate" or "base rate" of Bank One, Texas, National
Association (or its successor) from time to time (or if such rate is
discontinued, the rate charged by that bank to its most creditworthy commercial
borrowers), or (b) the maximum interest rate allowed by Law. Any Rent or other
sum required to be paid to Landlord on written demand will be due and payable
on Tenant's receipt of a ▇▇▇▇, invoice, or other written demand for payment
from Landlord. If any Monthly Rent Installment is more than five (5) days past
due, or if any other payment of Rent or any other sum is more than ten (10)
days past due, Tenant must pay Landlord on written demand a late charge that is
the greater of $250.00 or five percent (5 %) of the amount of the Monthly Rent
Installment or other Rent past due. Late charges are intended to compensate
Landlord for additional administrative expenses associated with late payment.
Any payment of past-due Rent will be applied first to any late charges owed,
then to any interest accrued, and finally to the balance of Rent owed.
2.9 SECURITY DEPOSIT. Tenant must pay the Security Deposit to Landlord on
Tenant's execution of this Lease. Tenant will not receive any interest on the
Security Deposit. Landlord may commingle the Security Deposit with other funds
of Landlord. If a Tenant Default occurs, Landlord may (in addition to any
other remedies) apply the Security Deposit in whole or in part to pay any Rent,
damages, or other sums owed by Tenant. On written demand by Landlord following
such application, Tenant must pay Landlord a sufficient sum to restore the
Security Deposit to the full amount specified in the Basic Lease Information.
The Security Deposit is not an advance payment of Rent or a measure of
Landlord's damages for a Tenant Default. Upon full payment and performance of
this Lease by Tenant (including, without limitation, final payment of any
deficiency in the Base Rent Adjustment owed by Tenant as reflected in the final
Annual Statement), Landlord will refund to Tenant any balance of the Security
Deposit remaining after deducting any Rent, damages, or other sums owed by
Tenant.
3. SERVICES FURNISHED BY LANDLORD
3.1 BUILDING STANDARD SERVICES. So long as Tenant occupies the Premises
and no Tenant Default has occurred, Landlord will furnish the following
"Building Standard Services":
(a) Central heating, ventilating, and air conditioning ("HVAC") in
the Premises in season between the hours (the "Building Hours") of 7:00 a.m. to
7:00 p.m., Monday through Friday, and 8:00 a.m. to 4:00 p.m., Saturday,
exclusive of holidays observed by national banks in the city where the Property
is located.
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(b) Electricity for routine lighting and the operation of general
office machines such as typewriters, dictating equipment, adding machines,
personal computers, copying machines, and the like that are designed to operate
at or below the rated voltage and current loads of outlets, circuits, and other
electrical equipment initially installed in the Premises as part of the Tenant
Improvements and that do not consume either singly or in the aggregate, an
amount of electrical power per square foot of Usable Area materially in excess
of the amount of electrical power per square foot of Usable Area normally
consumed in ordinary general office occupancy of the Building.
(c) Building standard janitorial service in the Premises Monday
through Friday, exclusive of holidays observed by national banks in the city in
which the Property is located.
(d) Replacement as needed of Building standard fluorescent light
bulbs in the Premises.
(e) Initial issuance to Tenant of two (2) keys for each corridor
door to the Premises, and if Landlord provides electronic access control to
tenants of the Building generally, initial issuance to Tenant's employees in
the Premises of access cards for use in Building standard electronic access
card readers (not to exceed one (1) access card per 333 square feet of Net
Rentable Area in the Premises).
(f) Initial installation in Building standard graphics of Tenant's
name and suite number on the main exterior door of the Premises, and if
Landlord provides a tenant directory in the main Building lobby, one (1)
initial listing of Tenant's name on the tenant directory.
(g) Nonexclusive use of rest rooms with hot and cold water at
locations provided for the use of the Building's tenants generally.
(h) Nonexclusive use of passenger elevator service to the floor of
the Premises, with at least one (1) cab in service twenty-four (24) hours per
day.
(i) Routine maintenance, replacement, and repair of the structural
components of the Building, of the mechanical, electrical, and plumbing systems
and equipment serving the Building generally, and of the interior and exterior
common areas of the Building, including the Building's ground floor lobby,
exterior lighting, landscaping, and irrigation on the Property, and parking,
driveway, and walkway areas on the Property.
(j) Operation of equipment and/or employment of personnel for the
purpose of attempting to control access to the ground floor lobby of the
Building during other than Building Hours.
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3.2 ADDITIONAL SERVICES. If Landlord chooses to do so, Landlord may make
additional services available to tenants of the Building. Unless the
additional services are furnished to office tenants of the Building generally,
Landlord will establish a Building standard charge to be billed to the
particular tenants that request or utilize the additional services. The
following additional services will be available for a Building standard charge
if requested by Tenant:
(a) If requested far enough in advance in accordance with standard
procedures established for the Building, HVAC service during other than
Building Hours. The Building standard charge may include a minimum area and a
minimum number of hours of HVAC operation.
(b) Replacement of electronic access cards.
(c) If Landlord provides a tenant directory in the main Building
lobby, and to the extent space is available, additional or changed listings on
the tenant directory.
3.3 EXCESS OR SPECIAL SERVICE REQUIREMENTS. Landlord and Tenant agree
that:
(a) If any equipment in the Premises generates excessive heat or
requires a range of ambient temperature and humidity outside of that afforded
by the operation of the Building's standard HVAC equipment at thermostat
settings that Landlord considers standard for,the Building, Landlord may
require Tenant to cease using such equipment within ten (10) days after written
notice from Landlord. If Tenant fails to do so, Landlord may elect to install
supplemental HVAC and metering equipment, in which case Tenant must pay the
following costs to Landlord from time to time on written demand: (i) the cost
of the supplemental equipment and its design and installation plus a Building
standard charge to compensate Landlord for the additional administrative
burden; (ii) the cost of maintenance, replacement, and repair of the
supplemental equipment plus a Building standard charge to compensate Landlord
for the additional administrative burden; and (iii) costs of electrical power
consumed and chilled water as metered or otherwise reasonably determined by
Landlord, plus actual costs of accounting and billing therefor. This paragraph
will apply to the supplemental HVAC unit installed above the ceiling in the
Leased Premises.
(b) No equipment may be used that requires or uses electricity in
excess of the rated voltage and current loads of the outlets, circuits,and
other electrical equipment initially installed in the Premises as part of the
Tenant Improvements, and Landlord may enter the Premises and disconnect such
equipment immediately without prior notice to Tenant. If any type or quantity
of equipment in the Premises consumes electrical power in an amount per square
foot of Usable Area that is materially in
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excess of the amount of electrical power per square foot of Usable Area
normally consumed in ordinary general office occupancy of the Building,
Landlord may require Tenant to cease using such equipment within ten (10) days
after written notice from Landlord. If Tenant fails to do so, Landlord may
elect to install supplemental metering equipment, in which case Tenant must pay
the following costs to Landlord from time to time on written demand: (i) the
cost of the supplemental equipment and its design and installation plus a
Building standard charge to compensate Landlord for the additional
administrative burden; (ii) the cost of maintenance, replacement, and repair of
the supplemental equipment plus a Building standard charge to compensate
Landlord for the additional administrative burden; and (iii) metered costs of
electrical power consumed in excess of that included in Utilities Costs, plus
actual costs of accounting and billing therefor.
(c) If improvements in the Premises or any of the fixtures,
furnishings, equipment, or other personal property in the Premises requires
janitorial services in excess of that reasonably considered standard for the
Building by Landlord, if additional janitorial service is required to clean and
store cooking, eating, and drinking utensils and equipment in the Premises, or
if additional janitorial service is required to properly dispose of food,
drink, or other wastes and debris in the Premises, Landlord may refuse to
provide such services (in which case Tenant must provide such services at its
cost in a manner reasonably satisfactory to Landlord), or Landlord may elect to
provide such services (in which case Tenant must pay Landlord from time to time
on written demand the additional cost of such services plus a Building standard
charge to compensate Landlord for the additional administrative burden).
(d) If the Premises or any other part of the Property is damaged
by any act or omission of Tenant or its employees, agents, or contractors,
Landlord will make needed repairs or replacements, but Tenant must pay Landlord
on written demand the cost of the repairs and replacements in excess of
insurance proceeds actually received by Landlord, if any, plus a Building
standard charge to compensate Landlord for the additional administrative
burden. Landlord will have no obligation to begin such repair or replacement
work until Landlord receives all insurance proceeds and any funds due from
Tenant.
(e) All sums payable by Tenant pursuant to this Section are in
addition to the Base Rent Adjustment, which will be payable without reduction
in accordance with other applicable provisions of this Lease.
4. USE AND OCCUPANCY BY TENANT
4.1 USE. The Premises may be used and occupied only for general office
purposes and for no other purpose whatsoever. Landlord
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expressly prohibits the Tenant from using the Leased Premises for any deposit
taking operation. Tenant may not engage in or cause, must ensure that none of
its employees, agents, or contractors engages in or causes, and must use good
faith, reasonable efforts to ensure that none of its customers or other
visitors engages in or causes any of the following in the Premises or elsewhere
on the Property: (a) any action or the placement of any object that is visible
from the exterior of the Building or from lobby or other common areas of the
Property and that adversely affects the appearance of the Property; (b) any
emission of harmful or offensive odors or fumes or any loud or disturbing
noises; (c) any excessive load on floors or other structural elements of the
Building or on the mechanical, electrical, and plumbing systems of the
Building; (d) any fire or other hazard that might adversely affect the
availability or cost of insurance carried by Landlord or other tenants; (e) any
use, generation, storage, treatment, transportation, or disposal of any
Hazardous Material (except for generally available office equipment and
supplies that contain small quantities or low concentrations of Hazardous
Material so long as they are properly used and stored within the Premises,
properly disposed of by Tenant at a location other than the Property, and do
not by Law require any license or permit); (f) any waste, nuisance, or other
unreasonable interference with or disturbance of Landlord's business or the
occupancy of any other tenant of the Property; (g) any criminal or other
disreputable conduct that might adversely affect the reputation of Landlord or
the Property; (h) any noncompliance with rules, procedures, or instructions of
Landlord or its employees, agents, or contractors relating to protection of
life or personal safety or to security or access control; or (i) any
noncompliance with the Building Rules attached as Exhibit D (or amendments or
additions to such rules hereafter promulgated by Landlord). "Hazardous
Material" means any toxic or hazardous waste, material, or substance or any
other substance that is prohibited, limited, or regulated as a health or
environmental hazard or pollutant under any Law, or that even if not so
regulated, could or does pose a hazard to the environment or to the health and
safety of the occupants of the Building or others.
4.2 COMPLIANCE WITH LAWS. Tenant at its cost must comply with, must cause
its employees, agents, and contractors to comply with, and must use good faith,
reasonable efforts to cause its customers and other visitors to comply with all
applicable codes, statutes, ordinances, regulations, and other legal
requirements of any government or governmental agency (collectively, "Laws")
relating to the use, condition, or occupancy of the Premises (including,
without limitation, all Laws applicable to Tenant's business and operations in
the Premises). Without limiting the foregoing, Tenant at its cost must comply
with all requirements of the Americans With Disabilities Act and implementing
regulations applicable to the use, condition, or occupancy of the Premises
other than requirements relating solely to the physical structure
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of (a) the Work Letter Improvements, if any, as initially installed in the
Premises by Landlord, (b) the roof, foundation, and exterior walls of the
Building, and (c) the common areas of the Property.
4.3 MAINTENANCE OF THE PREMISES. Tenant must promptly report to Landlord
any damage to the Premises. Except to the extent included in Building Standard
Services, maintenance, replacement, and repair of all improvements and other
components of the Premises must be carried out by Tenant at its cost in a good
and workmanlike manner, using contractors approved by Landlord in writing, and
in a manner sufficient to keep the Premises and the improvements therein in as
good a condition as on the Commencement Date, reasonable wear and tear
excepted.
4.4 SIGNS AND ADVERTISING. Except for the entry letters and numerals
initially installed by Landlord as part of the Building Standard Services or as
specifically provided to the contrary in a Rider to this Lease (if any), no
signs or other graphics relating to Tenant or its business that are visible
from the exterior of the Building or from lobby or other common areas of the
Property may be installed anywhere on the Property. If Landlord elects to
permit any such signs or graphics, the size, location, and appearance thereof
must be satisfactory to Landlord in its discretion. Tenant may not use the
name of Landlord or of the Building or Property for any purpose other than to
identify the location of the Premises in Tenant's address.
4.5 ALTERATIONS, ADDITIONS, AND IMPROVEMENTS. Tenant may make no
alterations, additions, or improvements to the Premises or the Property without
the prior written consent of Landlord (which may be withheld in Landlord's
discretion). If Landlord consents, all alterations, additions, or improvements
must be completed without cost to Landlord, and Tenant must pay Landlord on
written demand the amount of all costs incurred by Landlord for architects and
engineers, permits, or other purposes related to the alterations, additions, or
improvements, plus a Building standard charge to compensate Landlord for the
additional administrative burden. Tenant must comply with all reasonable
requirements of Landlord relating to plans and specifications, compliance with
building codes and other Laws, employment and bonding of contractors,
insurance, compatibility with the Building's mechanical, electrical, and
plumbing systems, aesthetic considerations, and other matters as determined by
Landlord. All alterations, additions, or improvements, including, without
limitation, all partitions, walls, railings, carpeting, floor and wall
coverings, and other fixtures (excluding Tenant's trade fixtures) will become
the property of Landlord when made, and will remain upon the Premises,
provided, however, the foregoing will not apply to the supplemental HVAC unit
installed above the ceiling in the Leased Premises, which may be removed by
Tenant at Tenant's sole cost using a contractor approved by Landlord at
Landlord's sole discretion, at the expiration of the Term or earlier
termination of
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this Lease. Without limiting the foregoing, each of the following requires
Landlord's prior written consent: (a) installation of food, soft drink or other
vending machines; (b) removal or replacement of window coverings on exterior
windows initially installed in the Premises as part of the Tenant Improvements,
or the installation of additional window coverings, drapes, or other window
treatments; and (c) rekeying or other changes in the locks or other access
control devices on the exterior or interior doors of the Premises, or
duplication of any keys or electronic access cards furnished by Landlord.
4.6 PERSONAL PROPERTY AND TRADE FIXTURES. Tenant may not remove any of
the following from the Premises: (a) HVAC systems, fixtures, or equipment,
other than the supplemental HVAC unit; (b) lighting fixtures or equipment; (c)
carpeting and other attached floor coverings, or raised flooring; (d) plumbing
fixtures and equipment; (e) paneling or millwork; (f) built-in shelving or
cabinets; (g) drapes, blinds, or other window treatments; and (h) equipment or
appliances purchased or installed by Landlord as part of the Work Letter
Improvements. Except as provided in the preceding sentence, any personal
property or trade fixtures installed in the Premises at Tenant's expense will
remain Tenant's personal property, and must be removed from the Property by
Tenant on the expiration of the Term or earlier termination of this Lease
without damage to the Premises or other parts of the Property. On the
expiration of the Term or earlier termination of this Lease, Tenant must also
deliver to Landlord all keys, electronic access cards, and safe or vault
combinations with respect to the Premises, and leave the Premises in a clean
condition free of waste, refuse, or debris. If Tenant fails to do so, Landlord
may retain, store, or dispose of any trade fixtures or other personal property
left in the Premises however Landlord chooses without liability of any kind to
Tenant, repair any damage to the Premises or other parts of the Property caused
by the removal thereof, change or rekey locks and other access control devices
as necessary throughout the Building to maintain security, and clean the
Premises and properly dispose of all such waste, refuse, or debris; and Tenant
must pay to Landlord on written demand all costs and expenses incurred by
Landlord in connection with the foregoing, plus a Building standard charge to
compensate Landlord for the additional administrative burden.
4.7 TAXES PAYABLE BY TENANT. Tenant must pay any documentary stamp tax,
transfer tax, sales or use tax, excise tax, or any other tax, assessment, or
charge (other than any income, franchise, or similar tax imposed directly on
Landlord or Landlord's net income from the Property) required to be paid on
account of (a) the execution of this Lease, (b) the use or occupancy of the
Premises by Tenant, (c) the sale or use of goods or services furnished by
Landlord directly to Tenant or at Tenant's request, (d) the Rent or other
payments due hereunder, or (e) the value of trade fixtures, furnishings,
equipment, or other personal property located on the
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Premises and owned by or in the custody of Tenant. All such taxes,
assessments, and charges must be paid promptly as they become due prior to
delinquency. Tenant will provide Landlord with copies of paid receipts for
such taxes, assessments, or charges promptly after payment. Tenant must also
pay on written demand from Landlord any increase in ad valorem taxes or
assessments on the Property as a result of alterations, additions, or
improvements made after the Commencement Date (as separately assessed or as
reasonably valued and allocated by Landlord).
4.8 PROTECTION AGAINST LIENS. No mechanics', materialmen's, or other type
of lien or claim may be filed against Landlord or the Property by, against,
through, or under Tenant or its contractors. If any such lien or claim is
filed, Tenant must either cause the lien or claim to be discharged within ten
(10) days after filing, or if all required approvals from the holders of
Mortgages on the Property are obtained and Tenant furnishes adequate security
to prevent any foreclosure proceedings against the Property, Tenant may in good
faith contest such lien or claim; otherwise, Landlord may, in addition to any
other right or remedy available to it, elect to discharge the lien or claim by
paying the amount alleged to be due or by giving appropriate security. If
Landlord discharges or secures the lien or claim, then Tenant must reimburse
Landlord on written demand for all sums paid and all costs (including
reasonable attorneys' fees and costs of litigation) incurred by Landlord plus a
Building standard charge to compensate Landlord for the additional
administrative burden. All of Tenant's contracts, purchase orders, or similar
documents relating to any labor or materials to be furnished for the Premises
must state that Tenant is solely responsible for payment and that no lien may
attach to the Property to secure any payment due.
4.9 ACCESS BY LANDLORD. Landlord and its agents and representatives may
enter the Premises without notice in an emergency. At reasonable hours and
after reasonable notice and accompanied by an employee, agent or representative
of the Tenant, Landlord and its agents and representatives may enter the
Premises to conduct inspections, make repairs, alterations or additions, and to
show the Premises to prospective tenants, subtenants, mortgagees, and
purchasers.
5. TRANSFERS
5.1 TRANSFERS BY TENANT. Landlord and Tenant agree that:
(a) Without the prior written consent of Landlord in each instance
(which may be withheld in Landlord's discretion), Tenant may not do any of the
following (a "Tenant Transfer"): (i) assign this Lease or any estate or
interest therein, whether absolutely or collaterally as security for any
obligation; (ii) sublease any part of the Premises; (iii) permit any assignment
of this Lease or any
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estate or interest therein by operation of Law, whether absolutely or
collaterally as security for any obligation; (iv) grant any license,
concession, or other right of occupancy for any part of the Premises; (v)
permit the use of any part of the Premises by any person other than Tenant and
its agents and employees; (vi) assign or otherwise transfer ownership of a
majority of the assets of Tenant; or (vii) merge or be consolidated into any
other entity. In soliciting any Tenant Transfer, Tenant must endeavor to
obtain fair market value consideration. No Tenant Transfer to any then current
tenant or occupant of the Building will ever be permitted. Any attempted
Tenant Transfer without Landlord's prior written consent will be void.
(b) If Tenant requests Landlord's consent to a Tenant Transfer,
Landlord may either (i) approve or disapprove the Tenant Transfer, or (ii)
terminate this Lease with respect to the part of the Premises affected by the
proposed Tenant Transfer. In connection with each Tenant Transfer request by
Tenant, Tenant must obtain and furnish to Landlord all documents, financial
reports, and other information Landlord reasonably requires in order to
evaluate the proposed transferee. Landlord will advise Tenant of Landlord's
decision about the requested Tenant Transfer within thirty (30) days after
receipt of Tenant's written Tenant Transfer request and all requested
supporting materials. As a condition to giving its consent to a Tenant
Transfer, Landlord may require that any instrument to effectuate the Tenant
Transfer be in a form satisfactory to Landlord, that the transferee assume the
Lease, and that alterations to the Premises needed to comply with Law be
carried out without cost to Landlord in accordance with the provisions of this
Lease relating to alterations of the Premises. If Landlord refuses to consent
to a requested Tenant Transfer, this Lease and the obligations and liabilities
of Tenant under this Lease will nonetheless remain in full force and effect.
The consent of Landlord to one Tenant Transfer is never to be construed as
waiving the requirement for Landlord's consent to other Tenant Transfers, nor
will any consent by Landlord or any Tenant Transfer discharge or release Tenant
from any obligations or liabilities to Landlord under this Lease.
(c) Tenant must pay Landlord all cash or other proceeds of any
Tenant Transfer in excess of the Rent payable under this Lease, and Tenant
hereby assigns to Landlord all rights it may have or ever acquire to the excess
proceeds, which will be due and payable to Landlord on receipt by Tenant and
will be accompanied by an accounting of the sums owed, certified by Tenant. No
transferee of less than the entire Premises for the full Term as the result of
a Tenant Transfer will ever be entitled to exercise any renewal, extension,
expansion, termination, or other option provided in this Lease (or in any
Rider) or to the return of the Security Deposit. If a Tenant Default occurs
after any Tenant Transfer, Landlord may, at its option, collect Rent directly
from the transferee, and Tenant hereby authorizes any such transferee to pay
Rent directly
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to Landlord at all times after receipt of written notice from Landlord. No
direct collection of Rent by Landlord from any transferee following a Tenant
Transfer will constitute a novation or otherwise release Tenant from its
obligations and liabilities under this Lease.
5.2 TRANSFERS BY LANDLORD. Landlord has the unrestricted right to sell,
assign, mortgage, encumber, or otherwise dispose of all or any part of the
Property or any interest therein. Upon sale or other disposition of the
Property, Landlord will be released from obligations and liabilities thereafter
accruing under this Lease, and Tenant will attorn to Landlord's successor and
look solely to such successor for performance of the Lease thereafter.
5.3 SUBORDINATION. This Lease is automatically subordinate to all
present and future mortgages, deeds of trust, deeds to secure debt, other
security instruments, or ground or land leases encumbering all or any part of
the Property ("Mortgages") and to all renewals, modifications, consolidations,
replacements, and extensions of any Mortgage. No other document is necessary to
subordinate this Lease to any Mortgage, but if Landlord so requests, Tenant will
promptly execute an appropriate document to confirm such subordination. Upon
request of any party succeeding to the interest of Landlord as a result of
enforcement of any Mortgage, Tenant will automatically become the tenant of such
successor in interest without change in the terms of this Lease except that such
successor in interest will not be (a) subject to any credits, offsets, defenses,
or claims which Tenant may have against any prior landlord, (b) bound by any
payment of Rent for more than one (1) month in advance (except prepayments in
the nature of security for the performance by Tenant of its obligations under
this Lease that are actually received by such successor in interest), (c) bound
by any amendment or modification of this Lease made without the written consent
of the holder of the Mortgage (if such consent is required by the Mortgage), (d)
liable for any act, omission, or default of any prior landlord, or (e) required
to make any capital improvements to the Property or the Premises that Landlord
may have failed to complete. Notwithstanding the foregoing, the holder of any
Mortgage may elect at any time to subordinate its Mortgage to this Lease by
filing a document to such effect in the appropriate public real property records
and giving Tenant notice of such election.
5.4 ESTOPPEL CERTIFICATE. Within ten (10) days after written request from
Landlord, Tenant must (a) execute an estoppel certificate on a form provided by
Landlord certifying the status of such matters with respect to the Lease as
Landlord may request, and (b) furnish Landlord the most recent available
audited financial statement (or if Tenant does not normally have audited
Financial statements prepared, the most recent unaudited financial statement)
of Tenant and of any guarantor of this Lease. If Tenant fails to deliver a
requested estoppel certificate within the required 10-day
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period, Tenant will be deemed to have agreed to the statements contained in the
form provided by Landlord.
6. RISK MANAGEMENT
6.1 CASUALTY INSURANCE. Landlord must maintain fire and casualty
insurance with at least extended coverage on the Building and other
improvements included in the Property (excluding trade fixtures and personal
property owned by Tenant or in Tenant's custody or control) in amounts desired
by Landlord issued by an insurance company authorized to insure properties in
the state where the Property is located. Tenant will have no interest in the
proceeds of Landlord's insurance. If any improvements in the Premises have a
value substantially disproportionate to those found generally in the Building,
or if Tenant's use or occupancy poses any increased risk of loss (without
implying any consent to such use or occupancy), any resulting increase in
Landlord's premiums for such insurance must be paid by Tenant to Landlord on
written demand. Tenant at its own cost must maintain fire and casualty
insurance with at least extended coverage for the replacement cost of all trade
fixtures and personal property located on the Property and owned by Tenant or
in Tenant's custody or control, with business interruption coverage for a
period of at least six (6) months, issued by an insurance company authorized to
insure properties in the state where the Property is located. Tenant must
furnish Landlord certificates of insurance evidencing the required fire and
casualty insurance coverage prior to the Commencement Date and thereafter prior
to each policy renewal date.
6.2 WAIVER OF SUBROGATION AND CLAIMS. Landlord waives all claims, causes
of action, or other rights of recovery against Tenant and its employees,
agents, and contractors for any loss or damage to the Building and other
improvements included in the Property by reason of fire or other insurable risk
or loss (whether or not actually insured), regardless of cause or origin
(including negligence), and agrees that no insurer will have any right of
subrogation to Landlord. Tenant waives all claims, causes of action, or other
rights of recovery against Landlord and its employees, agents, and contractors
for any loss or damage to any trade fixtures and personal property located on
the Property and owned by Tenant or in Tenant's custody or control by reason of
fire or other insurable risk of loss (whether or not actually insured),
regardless of cause or origin (including negligence), and agrees that no
insurer will have any right of subrogation to Tenant. Each of Tenant and
Landlord will advise its fire and casualty insurers of the foregoing waiver and
ensure that such waiver is a part of each policy of fire and casualty insurance
that it carries.
6.3 CASUALTY DAMAGE. If any part of the Premises is damaged by fire or
other casualty, Tenant will give prompt notice to Landlord. Landlord may, at
its option, terminate this Lease by so notifying
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Tenant in writing within sixty (60) days after the date of a fire or other
casualty if (a) the casualty renders any substantial part of the Premises
untenantable and the repair time to restore the Premises to a tenantable
condition (as reasonably estimated by Landlord) will extend beyond the date
that is one hundred eighty (180) days after the date of the casualty, (b) the
casualty renders any substantial part of the Premises untenantable and at the
time, less than two (2) years remain until the expiration of the Term, (c) any
part of the Property is damaged to the extent that in Landlord's judgment,
restoration is not practical (whether or not the Premises have been damaged by
the casualty), or (d) the holder of any Mortgage requires application of any
insurance proceeds to reduce the Mortgage debt. If the damage by fire or other
casualty renders any substantial part of the Premises untenantable and if the
repair time to restore the Premises to a tenantable condition (as reasonably
estimated by Landlord) will extend beyond the date that is one hundred eighty
(180) days after the date of the casualty, Tenant may elect to terminate this
Lease by so notifying Landlord in writing within thirty (30) days after Tenant
receives Landlord's written estimate of the time required for restoration. If
the Lease is not so terminated by Landlord or Tenant, Landlord will promptly
begin and diligently pursue the work of restoring the Premises (including the
Tenant Improvements initially installed in the Premises) to substantially their
former condition as soon as reasonably possible. Landlord will not, however,
be required to restore any alterations, additions, or improvements other than
the initial Tenant Improvements or to spend any amount in excess of the
insurance proceeds actually received by Landlord as a result of the casualty.
Landlord will allow Tenant all equitable abatement of Rent during the time and
to the extent the Premises are untenantable as the result of fire or other
casualty, but such abatement will not extend the Term.
6.4 CONDEMNATION. If all or substantially all of the Property is
condemned or is sold in lieu of condemnation, then this Lease will terminate on
the date the condemning authority takes possession of the Property. If less
than all of the Property is so condemned or sold (whether or not the Premises
are affected) and in Landlord's judgment, the Property cannot be restored to an
economically viable condition, or if the holder of any Mortgage requires
application of condemnation proceeds to the reduction of the Mortgage debt,
Landlord may terminate this Lease by written notice to Tenant effective on the
date the condemning authority takes possession of the affected part of the
Property. If the condemnation or sale in lieu thereof will render any
substantial part of the Premises untenantable, Tenant may terminate this Lease
by written notice to Landlord effective on the date the condemning authority
takes possession of the affected part of the Premises. If this Lease is not so
terminated by Landlord or Tenant, Landlord will, to the extent feasible,
restore the Premises (including the Tenant Improvements initially installed in
the Premises) to substantially their former condition. Landlord will not,
however, be required to
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restore any alterations, additions or improvements other than the initial
Tenant Improvements or to spend any amount in excess of the condemnation
proceeds actually received by Landlord. Landlord will allow Tenant an
equitable abatement of Rent during the time and to the extent the Premises are
untenantable as the result of any condemnation or sale in lieu thereof, but
such abatement will not extend the Term. All condemnation awards and proceeds
belong exclusively to Landlord, and Tenant will not be entitled to, and
expressly waives and assigns to Landlord, all claims for any compensation for
condemnation; provided, however, if Tenant is permitted by applicable law to
maintain a separate action that will not reduce condemnation awards or proceeds
to Landlord, Tenant ▇▇▇ pursue such separate action, but only for loss of
business, moving expenses, and Tenant's trade fixtures.
6.5 LIABILITY INSURANCE. Each of Landlord and Tenant must maintain separate
policies of commercial general liability insurance issued by an insurance
company authorized to transact business in the state where Property is located.
The combined single limit of liability insurance coverage must be at least
$2,000,000, or such greater amount as Landlord may reasonably require from time
to time (so long as Landlord maintains at least the same limit of coverage).
Coverage in excess of $1,000,000 may be provided through a policy of umbrella
liability insurance. Tenant's liability insurance policy must name Landlord as
an additional insured and contain an undertaking by the insurer not to cancel
or change coverage materially without first giving thirty (30) days' written
notice to Landlord. Tenant must furnish Landlord certificates of insurance
evidencing the required commercial general liability insurance coverage prior
to the Commencement Date and thereafter prior to each policy renewal date.
6.6 INDEMNIFICATION. Landlord and Tenant agree that:
(a) Tenant will indemnify, defend, and hold Landlord and its
officers, employees, agents, directors, shareholders, and partners harmless
against any loss, liability, damage, fine or other governmental penalty, cost,
or expense (including reasonable attorneys' fees and costs of litigation), or
any claim therefor, resulting from: (i) noncompliance with or violation of any
Law applicable to Tenant or its use and occupancy of the Premises; (ii) the
use, generation, storage, treatment, or transportation, or the disposal or
other release into the environment, of any Hazardous Material by Tenant or its
employees, agents, or contractors or as a result of Tenant's use and occupancy
of the Premises; (iii) injury to persons or loss or damage to property to the
extent caused by any negligent or wrongful act or omission of Tenant or its
employees, agents, and contractors, but only to the extent the loss or damage
would not be covered by property and casualty insurance of the type and amount
required to be carried by Landlord pursuant to this Lease (whether or not
actually so carried).
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(b) Landlord will indemnify, defend, and hold Tenant and its
officers, employees, agents, directors, shareholders, and partners harmless
against any loss, liability, damage, fine or other governmental penalty, cost,
or expense (including reasonable attorneys' fees and costs of litigation), or
any claim therefor, resulting from: (i) Landlord's noncompliance with or
violation of any Law applicable to Landlord, but only to the extent such
noncompliance or violation is not based on the use or occupancy of the Premises
by Tenant or on any other act or omission of Tenant or its employees, agents,
or contractors; (ii) the use, generation, storage, treatment, or
transportation, or the disposal or other release into the environment, of any
Hazardous Material by Landlord or its employees, agents, or contractors; (iii)
injury to persons or loss or damage to property to the extent caused by any
negligent or wrongful act or omission of Landlord or its employees, agents, and
contractors, but only to the extent the loss or damage would not be covered by
property and casualty insurance of the type and amount required to be carried
by Tenant pursuant to this Lease (whether or not actually so carried).
6.7 LIMITATIONS ON LIABILITY. Notwithstanding anything to the contrary in
this Lease, Landlord and Tenant agree that:
(a) None of the following will constitute a breach of the covenant
of quiet enjoyment, an actual or constructive eviction of Tenant, or a Landlord
Default: (i) the unavailability, curtailment, interruption, fluctuation,
inadequacy, or other defect in any of the services furnished or to be furnished
by Landlord pursuant to Article III of this Lease as a result of any failure or
malfunction of, or damage to any lines, equipment, or other facilities on the
Property or elsewhere, any act or omission of any utility company, the
requirements of any Law, the unavailability of materials or supplies, or any
other circumstance outside of Landlord's reasonable control so long as Landlord
in good faith attempts to remedy such circumstances as quickly as reasonably
possible; (ii) any design or other defect in the physical structure of the
Building, in the mechanical, electrical, and plumbing systems of the Property,
or in the Tenant Improvements or any other improvements on the Property so long
as Landlord in good faith attempts to remedy the defect as quickly as
reasonably possible; or (iii) any repairs, replacements, maintenance,
alterations, additions, or improvements to any part of the Property so long as
such activities are conducted without unreasonable interference with Tenant's
use of the Premises.
(b) Landlord will not be liable (whether in the event of a
Landlord Default or in any other circumstance whatsoever), and Tenant hereby
waives and releases all claims, causes of action, or other rights of recovery
it may ever have against Landlord for: (i) any negligent or other acts or
omissions by other tenants or occupants of the Property or their employees,
agents, contractors, customers, or visitors; (ii) loss or damage to property or
personal
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injury or death resulting from any negligent or other act or omission of
Landlord or its employees, agents, or contractors relating to the security of
the Property; (iii) any loss of business or profits of Tenant or other
consequential damages; or (iv) exemplary, punitive, or other special damages of
any kind.
(c) None of Landlord's officers, employees, agents, directors,
shareholders, or partners will ever have any liability to Tenant under or in
connection with this Lease, and Tenant hereby waives and releases all claims,
causes of action, or other rights of recovery it may ever have against such
parties under or in connection with this Lease.
(d) Tenant agrees to look solely to Landlord's interest in the
Property for the recovery of any damages or other sums of money that Landlord
may ever owe Tenant under or in connection with this Lease, and Landlord will
never be personally liable for payment of any such damages or other sums of
money, or any judgment therefor.
6.8 ALLOCATION OF RISKS. TENANT ACKNOWLEDGES THAT IT HAS BEEN ADVISED TO
HAVE THE PROVISIONS OF THIS LEASE REVIEWED BY AN ATTORNEY OF ITS OWN CHOOSING
AND THAT IT HAS DONE SO OR KNOWINGLY ELECTED NOT TO DO SO. EACH OF THE
WAIVERS, RELEASES, AND OTHER LIMITATIONS ON LIABILITY OR CLAIMS PROVIDED IN
THIS ARTICLE OR ELSEWHERE IN THIS LEASE (INCLUDING, WITHOUT LIMITATION,
LIABILITY OR CLAIMS BASED ON NEGLIGENCE OR OTHER FAULT) HAS BEEN KNOWINGLY AND
INTENTIONALLY MADE AND AGREED TO BY TENANT. THIS SECTION IS INTENDED TO
SATISFY ANY REQUIREMENT OF LAW THAT A WAIVER, RELEASE, OR OTHER LIMITATION OF
CLAIMS OR LIABILITY BASED ON NEGLIGENCE OR OTHER FAULT BE CONSPICUOUSLY
DISCLOSED.
7. DEFAULT AND REMEDIES
7.1 TENANT DEFAULT. The occurrence of any of the following will be a
"Tenant Default":
(a) Tenant fails to pay Monthly Rent Installment within five (5)
days after the date payment is due, or Tenant fails to pay any other Rent or
other sum owing from Tenant to landlord under this Lease within ten (10) days
after the date of Tenant's receipt of a ▇▇▇▇, invoice, or other written demand
for payment.
(b) Tenant fails to perform or comply with any provision of this
Lease not requiring the payment of Rent or other sums of money, and such
failure continues for more than fifteen (15) days after written notice from
Landlord of such failure; provided, however, if any such failure by Tenant
cannot be corrected within such 15-day period solely as a result of
nonfinancial circumstances outside of Tenant's control, and if Tenant has
commenced substantial corrective actions within such 15-day period and is
diligently pursuing such corrective actions, such 15-day period will be
extended for such additional time as is reasonably
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necessary to allow completion of actions to correct Tenant's failure.
(c) Tenant fails to take occupance of the Premises within fifteen
(15) days after the Commencement Date, or tenant thereafter ceases to do
business in or abandons any substantial part of the Premises, whether or note
Rent continues to be paid.
(d) If Tenant or any guarantor of this Lease is other than a
natural person, the corporate, partnership, or other entity constituting Tenant
or such guarantor is dissolved, liquidated, or otherwise ceases to exist in
good standing under applicable Law.
(e) Tenant's leasehold estate is taken on execution or other
process of Law in any action against Tenant.
(f) Tenant or any guarantor of this Lease files a petition under
any chapter of the United States Bankruptcy Code, as amended, or under any
similar Law of any state, or a petition is filed against Tenant or any such
guarantor under the United States Bankruptcy Code, as amended, or under any
similar Law of any state and is not dismissed with prejudice within twenty (20)
days of filing, or a receiver or trustee is appointed for Tenant's leasehold
estate or for any substantial part of the assets of Tenant or any such
guarantor and such appointment is not dismissed with prejudice within sixty
(60) days, or Tenant or any such guarantor makes a general assignment for the
benefit of creditors.
(g) Any guarantor of this Lease fails or refuses to perform or
comply with such guarantor's guaranty of this Lease.
7.2 LANDLORD'S REMEDIES. If a Tenant Default has occurred, Landlord may
(in addition to any other rights or remedies available by Law) then or at any
time thereafter to do any one or more of the following at Landlord's option:
(a) Landlord, with or without terminating this Lease, may take any
reasonable action to remedy any failure of Tenant to comply with or perform
this Lease, and may enter the Premises as necessary to do so. Tenant must
reimburse Landlord on written demand for all costs so incurred plus a Building
standard charge to compensate Landlord for the additional administrative
burden.
(b) Landlord may terminate this Lease by express written notice of
termination to Tenant, enter and repossess the Premises by forcible entry or
detainer suit or as otherwise permitted by Law without additional demand or
notice of any kind to Tenant, and remove all persons or property therefrom
using such lawful force as may be necessary (and Tenant hereby waives any claim
for loss or damage by reason of such reentry, repossession, or removal), in
which case Landlord will be entitled to recover from Tenant (i) the cost of
repossessing the Premises (including without limitation,
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reasonable attorneys' fees and costs of litigation), (ii) the anticipated cost
of any repairs, alterations, additions, and improvements to the Premises,
leasing inducements, and brokerage commissions for reletting the Premises, (ii)
all unpaid Rent owed at the time of termination, (iv) the present value of the
balance of the Rent for the remainder of the Term less the present fair market
rental value of the Premises for the same period (taking into account all
relevant factors, including market rent concessions and the time necessary to
relet the Premises and using a discount rate per annum equal to the interest
rate on U.S. Treasury obligations with a maturity comparable to the length of
the remainder of the Term), and (v) interest and any other sum of money or
damages owing by Tenant to Landlord. On termination of this Lease, Landlord
may elect to evict all subtenants and others in possession, or on attornment of
any subtenant to Landlord, to recognize such sublease as a direct lease between
the subtenant and Landlord.
(c) Landlord may terminate Tenant's right of possession (but not
this Lease), enter and repossess the Premises by forcible entry or detainer
suit or as otherwise permitted by Law without demand or notice of any kind to
Tenant and without terminating this Lease, and remove all persons or property
therefrom using such lawful force as may be necessary (and Tenant hereby waives
any claim for loss or damage by reason of such reentry, repossession, or
removal), in which case Landlord may (but will not be obligated to) relet the
Premises for the account of Tenant for such rent and upon such terms as are
satisfactory to Landlord, and without preference to any other space in the
Building. The rent actually received from such reletting of the Premises, if
any, will be applied to (i) the cost of repossessing the Premises (including
without limitation, reasonable attorneys' fees and costs of litigation), (ii)
the cost of any repairs, alterations, additions, and improvements to the
Premises, leasing inducements, and brokerage commissions paid by Landlord for
reletting the Premises (which Landlord is hereby authorized to make), (iii)
accrued unpaid Rent, and (iv) interest and any other sum of money or damages
owing by Tenant to Landlord. If at any time or from time to time the rent
actually received from such reletting of the Premises, if any, is not
sufficient to pay all such sums then accrued, the deficiency will be due and
payable from Tenant to Landlord on written demand. Landlord may file suit to
recover any such deficiency at any time or from time to time without being
obliged to wait until expiration of the Term, and no recovery of any sum due
Landlord will be a defense to recovery of any amount not previously reduced to
judgment. No reletting of the Premises will be construed as an election on the
part of Landlord to terminate this Lease, which termination will occur, if at
all, only by express written notice of termination to Tenant. Notwithstanding
any such reletting without termination, Landlord may at any time thereafter
elect to terminate this Lease for any previous Tenant Default.
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(d) in entering the Premises pursuant to this Section, Landlord
may use a duplicate or master key or lock combination or other lawful means,
and may thereafter change the locks to the Premises to preclude further access
by Tenant or others; and Tenant waives any requirement of Law to the contrary.
Thereafter, Landlord will not be obliged to permit Tenant or others to enter
the Premises; provided, however, during Landlord's normal business hours and at
the convenience of Landlord, and upon the written request of Tenant accompanied
by such written waivers and releases as Landlord may require, Landlord will
escort Tenant or its authorized personnel to the Premises to retrieve any
personal belongings or other property of Tenant not subject to any lien or
security interest in favor of Landlord.
(e) Even if this Lease is not terminated, Landlord may terminate
all rights of Tenant, if any, to receive any allowance, reimbursement payment,
or other concession under any provision of this Lease (or any Rider) and all
renewal, extension, expansion, cancellation, termination, or other options of
Tenant, if any, under any provision of this Lease (or any Rider).
7.3 HOLDING OVER. If Tenant remains in possession after the expiration of
the Term or earlier termination of this Lease with the express written consent
of Landlord, Tenant will be a month-to-month tenant; otherwise, Tenant will be
a tenant at will. In either case, Tenant must pay a Monthly Rent Installment
each month throughout the holdover period equal to the greater of (a) twice the
Monthly Rent Installment that Tenant was obligated to pay immediately preceding
the start of the holdover period, or (b) the prevailing market rent for the
Premises as reasonably determined by Landlord. No holding over by Tenant will
extend the Term. If Tenant remains in possession as a tenant at will, Tenant
will indemnify, defend, and hold Landlord harmless against any loss, liability,
damage, cost, or expense (including attorneys' fees and costs of litigation),
or any claim therefor, resulting from any inability or delay in delivering
possession to any party to whom Landlord may have agreed to lease any part of
the Premises.
7.4 LIEN FOR RENT. In addition to any lien at Law, Tenant grants Landlord
a lien and security interest on all property of Tenant now or hereafter located
in the Premises (including proceeds thereof) to secure payment of the Rent and
full performance of this Lease by Tenant. Landlord has all rights for the
enforcement of such lien and security interest as are available under
applicable Law, including, without limitation, rights under the Uniform
Commercial Code of the state where the Property is located and the right after
a Tenant Default to sell the property so encumbered at a public or private
sale, with or without having such property at the sale, after giving Tenant
reasonable notice of the time of any public sale or of the time after which any
private sale is to be made, at which sale Landlord may purchase unless
otherwise prohibited by Law. Unless otherwise required by Law, and without
excluding any
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other manner of giving Tenant reasonable notice, any requirement of reasonable
notice will be met if notice is given in the manner prescribed in this Lease at
least five (5) days before the time of sale. The proceeds of any sale will be
applied first to pay Landlord's costs and expenses of accomplishing the sale
(including reasonable attorneys' fees and costs of litigation) and then to any
other sums owing and unpaid to Landlord under this Lease. Tenant agrees to
execute as debtor such financing statements as Landlord may reasonably request
in order to perfect its security interest. Landlord, at its election at any
time, may File a copy of this Lease (or a copy of the first page, this Section,
and the signature page of this Lease) as a financing statement.
7.5 LANDLORD'S DEFAULT. It will be a "Landlord Default" only if Landlord
fails to perform or comply with any provision of this Lease and the failure
continues for fifteen (15) days after written notice from Tenant to Landlord
(with a copy to the holder of any Mortgage if Tenant has been notified in
writing of the identity and address of such holder); provided, however, if any
such failure by Landlord cannot be corrected within such 15-day period solely
as a result of nonfinancial circumstances outside of the control of Landlord,
and if substantial corrective actions have commenced within such 15-day period
and are being diligently pursued, such fifteen-day period will be extended for
such additional time as is reasonably necessary to allow completion of actions
to correct Landlord's failure. Except as otherwise provided in this Lease, if
a Landlord Default occurs, Tenant will be entitled to all rights and remedies
available by Law.
7.6 ATTORNEYS' FEES. In the event of litigation relating to a Tenant
Default or a Landlord Default, the defaulting party must pay all reasonable
attorneys' fees and expenses incurred by the nondefaulting party in enforcing
its rights under this Lease. In addition, if Tenant requests the consent of
Landlord to any matter or requests Landlord to take any other action requiring
legal services, Tenant must pay all reasonable attorneys' fees and expenses so
incurred by Landlord.
7.7 NON-WAIVER. The failure of a party to insist upon the strict
performance of any provision of this Lease or to exercise any remedy for
default will not be construed as a waiver. The waiver of any noncompliance
with this Lease will not keep subsequent similar noncompliance from being a
default. No waiver will be effective unless expressed in writing signed by the
waiving party, and no course of dealing will constitute a waiver or otherwise
modify the provisions of this Lease. No waiver will affect any condition other
than the one specified in the waiver and then only for the time and in the
manner stated. Landlord's receipt of any Rent or other sums with knowledge of
noncompliance with this Lease by Tenant will not be considered a waiver of the
noncompliance. No payment by Tenant of a lesser amount than the full amount
then due will be considered to be other than on account of the earliest
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amount due. No endorsement or statement on any check or any letter
accompanying any check or payment will be considered an accord and
satisfaction, and Landlord may accept any check or payment without prejudice to
Landlord's right to recover the balance owing and to pursue any other available
remedies. No acceptance by Landlord of keys or possession of the Premises will
constitute a surrender or waive any Tenant Default or other liability or
obligation of Tenant under this Lease.
7.8 REMEDIES CUMULATIVE. Except as otherwise expressly stated in this
Lease, all rights and remedies in this Lease are in addition to such other
rights as may be available by Law. The exercise of one right or remedy will
not constitute an election to waive or forego any other right or remedy.
8. OTHER PROVISIONS
8.1 NOTICES. Any notice in connection with this Lease may be given by (a)
depositing written notice in the United States mail, postpaid and certified and
addressed to the party at its Notification Address with return receipt
requested, (b) delivering written notice by commercial messenger or overnight
private delivery service to the party at its Notification Address, or (c)
facsimile transmission of written notice to the party at its Notification
Address. Unless actually received earlier, written notice deposited in the
mail in the manner described above will be effective on the third business day
after it is so deposited, even if not received. Written notice given by
commercial messenger, overnight private delivery, or facsimile transmission in
the manner described above will be effective as of the time of receipt at the
Notification Address as evidenced by any confirmation of delivery provided by
the messenger or delivery service or by facsimile confirmation of transmission.
Each party may change its Notification Address by not less then least ten (10)
days' prior written notice to the other party.
8.2 BUILDING STANDARD CHARGES. The Building standard charge for any
service or other action is fifteen percent (15%) of the total costs and
expenses paid to others for necessary materials, equipment, and services
(including legal, architectural, engineering, and other consulting services),
or at Landlord's option, a reasonable fee or other charge uniformly established
for the Building to compensate Landlord for the additional work and
administrative burden.
8.3 BROKERS. Each of Landlord and Tenant represents and warrants to the
other that it has not entered into any agreement with, or otherwise had any
dealings with any broker or agent other than Broker as the result of which any
commission, fee, or other compensation of any kind will be payable by the other
party in connection with this Lease. Each party will indemnify, defend, and
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hold the other party harmless against any loss, liability, damage, cost, or
expense (including reasonable attorneys' fees and costs of litigation), or any
claim therefor resulting from the untruth or inaccuracy of the foregoing
warranty and representation made by such party. Any fee of commission owing to
Broker will be paid only in accordance with the terms of a separate written
agreement directly between Landlord and Broker.
8.4 AUTHORITY. Tenant warrants that as of the date of execution of this
Lease by Tenant, all consents or approvals (including approvals of any board of
directors or partners) required for Tenant's execution, delivery, and
performance of this Lease have been obtained, that Tenant has the right and
authority to enter into and perform this Lease, and that this Lease is valid
and binds Tenant. Landlord warrants that as of the date of execution of this
Lease by Landlord, all consents or approvals (including approvals of any board
of directors or partners) required for Landlord's execution, delivery, and
performance of this Lease have been obtained, that Landlord has the right and
authority to enter into and perform this Lease, and that this Lease is valid
and binds Landlord.
8.5 RECORDING AND CONFIDENTIALITY. Tenant agrees not to record this Lease
or any memorandum or affidavit thereof. Tenant may not disclose the terms of
this Lease to any third party except (a) legal counsel to Tenant, (b) any
assignee of Tenant's interest in this Lease or sublessee of Tenant, (c) as
required by Law or by subpoena or other similar legal process, or (d) for
financial reporting purposes.
8.6 INTERPRETIVE PROVISIONS. Landlord and Tenant agree that:
(a) This document, which consists of the Basic Lease Information,
this Lease Agreement, and its attached Exhibits and Riders (which are
identified below the signatures of the parties), embodies the entire contract
between the parties, and supersedes all prior agreements and understandings
between the parties related to the Premises, including all lease proposals,
letters of intent, and similar documents. All representations, warranties, or
agreements of an inducement nature, if any, are merged with, and stated in this
document. This Lease is being executed in multiple counterparts, each of which
is an original for all purposes.
(b) This Lease may be amended or otherwise modified only by a
written instrument executed by both Landlord and Tenant. No consent or
approval by Landlord will be effective unless given in writing signed by
Landlord or its duly authorized representative. Any consent or approval by
Landlord will extend only to the matter specifically stated in writing.
(c) The captions appearing in this Lease are included solely for
convenience and will never be given any effect in construing
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this Lease. The presumption that this Lease should be more strictly construed
against Landlord as the drafting party does not apply.
(d) If any provision of this Lease is invalid or unenforceable,
the remainder of this Lease will not be affected. Each separate provision of
this Lease will remain valid and enforceable to the fullest extent permitted by
Law.
(e) This Lease binds not only Landlord and Tenant, but also their
respective heirs, personal representatives, successors, and assigns (to the
extent assignment is permitted by this Lease).
(f) This Lease is governed by the Laws of the state where the
Property is located.
(g) All references to "days" in this Lease are to calendar days.
All references to "business days" in this Lease are to days that national banks
are open for business in the city where the Property is located. All
references to the "date of this Lease" are to the date appearing on the cover
page of this Lease, which is approximately the date on which Tenant executed
this Lease. Time is of the essence.
(h) Any liability or obligation of Landlord or Tenant under this
Lease accrued, arising, or based on any act, omission, or other circumstance
during the Term will survive the expiration of the Term or earlier termination
of this Lease, including without limitation, obligations and liabilities (i)
relating to the final adjustment of any estimated installments of the Base Rent
Adjustment to the actual Base Rent Adjustment owed, (ii) relating to the
condition of the Premises, and (iii) arising under agreements in this Lease to
indemnify, defend, or hold harmless.
(i) The relationship created by this Lease is that of landlord and
tenant. Landlord and Tenant are not partners or joint venturers, and neither
has any agency powers on behalf of the other. Tenant is not a beneficiary of
any other contract or agreement relating to the Property to which Landlord may
be a party, and Tenant has no right to enforce any such other contract or
agreement on behalf of itself, Landlord, or any other party.
8.7 EXECUTION AND EFFECTIVENESS. If the name of any Guarantor is
reflected in the Basic Lease Information, Landlord's obligations are
conditioned upon the receipt by Landlord of the Guaranty of Lease in the form
attached as Exhibit E duly executed by such Guarantor, failing which this Lease
will be null and void. Submission of this instrument for examination or
signature by Tenant does not constitute a reservation of or an option for
lease. This Lease will be effective only when fully executed and delivered by
both Tenant and Landlord.
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IN WITNESS WHEREOF, the parties have executed this Lease.
LANDLORD: TENANT:
COMMERCE PLAZA INVESTORS, L.P. NATIONAL BANCSHARES
By: Commerce Plaza CORPORATION OF TEXAS
Operating Corporation,
its General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------- -----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President Title: Chief Financial Officer
Exhibits:
A Floor Plan of Premises
B Description of Land
C Form of Commencement Date Certificate
D Building Rules
Riders:
1 Work Letter
2 Renewal Option
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RIDER 1
WORK LETTER
Tenant agrees that the Leased Premises as herein described, are suitable for
Tenant's intended use and acceptable for occupancy in its present condition.
If Tenant requires any construction within the Premises, Tenant must submit
drawings and specifications for Landlord's approval. If Landlord approves the
construction, Landlord will oversee all construction following Landlord's
receipt of a construction order executed by Tenant. As a condition to
Landlord's approval, Tenant must pay Landlord in advance the full amount of all
construction, architectural, and other costs attributable to the construction.
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RIDER 2
RENEWAL OPTIONS
Tenant has Three (3) options to extend the Term. Each option that is exercised
will extend the Term for twelve (12) consecutive months following immediately
after the date on which the Term would otherwise have expired. Each option
must be exercised, if at all, by Tenant's giving written notice to Landlord at
least three hundred sixty-five (365) days before the end of the then current
Term, failing which, all options under this Rider will lapse. If the Term is
so extended, all provisions of the Lease will remain unchanged except as
follows:
(a) The number of remaining options to extend the Term under this
Rider will be reduced by one (1) for each option exercised.
(b) The Work Letter will not apply, and Landlord will have no
obligation to renovate, remodel, or to make any alterations, additions, or
improvements to the Premises.
(c) Base Rent will be adjusted to $10.00 per square foot for the
first (1st) Option, $10.50 per square foot for the second (2nd) Option and
$11.00 per square foot for the third (3rd) Option.
(d) The Security Deposit will be increased to equal one (1)
month's Base Rent as adjusted for the applicable extended Term, and the amount
of the increase will be due and payable at the time the applicable option to
extend is exercised.
(e) The Monthly Parking Charge will be adjusted to equal the
greater of (i) the Monthly Parking Charge in effect under this Lease
immediately prior to the applicable extension of the Term, or (ii) the Monthly
Parking Charge quoted by Landlord for leases of comparable space in the
Building beginning when the applicable extension of the Term begins.
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FIRST AMENDMENT TO LEASE AGREEMENT
THIS FIRST AMENDMENT to Lease Agreement (the "First Amendment") is
entered into as of September 17th, 1996 between Patriot Commerce Investors,
L.P., a Delaware Limited Partnership ("Landlord"), and National Bancshares
Corporation of Texas, a Texas Corporation ("Tenant").
RECITALS:
A. Tenant is leasing Premises identified as Suite 875 and containing
1,176 square feet of Net Rentable Area in the Building known as Riverview
Towers, 111 ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, under the terms of the Lease
Agreement dated July 25, 1995 (the "Lease").
B. Landlord and Tenant desire to renew this Lease under the terms of the
renewal option (Rider 2) in the Lease.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are acknowledged, Landlord and Tenant amend the Lease as
follows:
1. Landlord and Tenant agree that the Lease Term is hereby
extended to end September 30, 1998.
2. Landlord and Tenant agree that as of October 1, 1997 (the
"Effective Date") the Base Rental (exclusive of Base Rent Adjustment) shall be
as follows:
Rate per Square
Foot of NRA Per Annual Monthly
Months Annum Amount Installments
I - 12 $10.00 $11,760.00 $980.00
3. Landlord and Tenant agree that the Premises, as described in
the Lease, are suitable for Tenant's intended use and occupancy in their
present condition, with no improvements required of Landlord.
4. Landlord and Tenant agree that the Security Deposit of $882.00
shall be increased by $98.00. Tenant must pay the increase in Security Deposit
to Landlord on Tenant's execution of this Amendment.
5. The number of Renewal Options remaining under the Lease is
reduced to (2).
6. Landlord and Tenant acknowledge that Landlord's name was
incorrectly reflected in the Lease as "Commerce Plaza Investors, L.P." when in
fact the correct name of Landlord is Patriot Commerce Investors, L.P.
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7. Landlord and Tenant acknowledge that the Building name has
changed from "Commerce Plaza" to "Riverview Towers."
8. All covenants, conditions and obligations contained in the
Lease Agreement shall remain in full force and effect except as modified by
this First Amendment.
IN WITNESS WHEREOF, Landlord and Tenant have executed this First Amendment as
of the date.
LANDLORD: TENANT:
PATRIOT COMMERCE INVESTORS, L.P. NATIONAL BANCSHARES
through its General Partner, CORPORATION
Patriot Commerce Operating
Corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------- ---------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President Title: Chief Financial
Officer
2