Exhibit 10.4
LEASE
This LEASE AGREEMENT is entered into as of the 30th day of August,
1991, by and between WESTERN ATLAS INTERNATIONAL, INC. (hereinafter
referred to as ("Landlord"), whose principal address for purposes
hereof is 10205 Westheimer, Xxxxxxx, Xxxxx 00000, (mailing address:
P. 0. Xxx 0000, Xxxxxxx, Xxxxx 00000-0000, Attn: General Counsel),
and XXXXXXXXXX LABORATORIES, INC., (hereinafter referred to as
"Tenant"), whose principal address for purposes hereof is 0000
Xx0xxx Xxxx Xxxx, Xxxxxx, Xxxxx 00000.
(1) DEFINITIONS.
(a) "Area": The leased area within the Leased Premises is
approximately 21,733 square feet
(b) Deleted intentionally.
(c) Deleted intentionally.
(d) "Building": The office building located on land more
particularly described on Exhibit "C" attached hereto and made a
part hereof for all purposes, which building is known as the Core
Laboratories Building, having a Post Office address of 0000 Xxxx
Xxxxxxxx Xxxxxxxxx, Xxxxxx, Xxxxx 00000-0000.
(e) "Commencement Date": January 1, 1992.
(i) Deleted intentionally.
(g) "Leased Premises": The area on Level A-1 of Building A
shown cross-hatched on the floor plan attached hereto as Exhibit
"A" and made a part hereof.
(h) "Lease Term": The period commencing on January 1, 1994
and ending on December 31, 1995 unless sooner terminated as
provided herein.
(i) "Lease Year" shall mean January 1, 1992 to December 31.
1992, and each subsequent twelve (12) month period of time
thereafter.
(j) De1eted intentionally.
(k) "Minimum Rent": $18,110.83 per month commencing on January
1, 1994 and continuing on or before the first day of each month
of the term hereof through December 31, 1993 and $20,374.69 per
month commencing on January 1, 1994 and continuing on or before the
first day of each month of the term hereof through the balance of
the term of this Lease.
(1) "Operating Costs": See Paragraph 8 of this Lease
(m) "Overtime Charge": $50.00 per hour subject to
proportionate adjustments determined by Landlord to reflect changes
in labor and utility costs.
(n) "Permitted use": Business offices and laboratory used
for analytical chemistry in connection with medical research, which
shall not involve research with micro-organisms or toxins.
(o) Deleted intentionally.
(p) Deleted intentionally
(i) Deleted intentionally
2. LEASE GRANT- Landlord, in consideration of the rent to be paid
and to be paid and the covenants and agreements to be performed by
Tenant, as herein set forth, does hereby Lease, Demise, and Let unto
Tenant and Tenant accepts the Leased Premises for the Lease Term.
3(a). RENT. Beginning on the Commencement Date, as hereinbefore
defined, Tenant promises and agrees to pay Landlord the Minimum Rent
(subject to adjustment as hereinafter provided) without demand or any
deduction or set off whatsoever, for each month of the entire
contemporaneously with the execution of this lease, and a like monthly
installment shall be due and payable beginning on the first day of the
calendar month next following the expiration of the Lease Term. One
such monthly installment shall be payable by tenant to Landlord first
full calendar month of the tease term after the Commencement Date and
continuing thereafter on or before the first day of each succeeding
calendar month during the term hereof. Rent for any fractional month
at the beginning of the tease term shall be prorated based on one
three hundred sixty-fifth (1/365th) of the current annual Minimum Rent
for each day of the partial month this Lease is in effect and shall be
due and payable on the Commencement Date.
(b) LATE CHARGES. In the event any monthly installment of the
Minimum Rent, or any other sums which become owing by tenant to
landlord under the provisions hereof are not received within ten (10)
days after the due date thereof (without in any way implying Landlord's
consent to such late payment), Tenant, to the extent permitted by law,
agrees to pay, in addition to said installment of the Minimum Rent or
such other sums owed, a late payment charge equal to ten percent (10%)
of the installment of the Minimum Rent or such other sums owed.
Notwithstanding the foregoing, the foregoing late charges shall not
apply to any sums which may have been advanced by Landlord to or for
the benefit of Tenant pursuant to the provisions of this Lease, it
being understood that such sums shall bear interest, which Tenant
hereby agrees to pay to Landlord, at the rate of eighteen percent (18%)
per annum or at the maximum rate of interest permitted by law to be
charged Tenant for the use or forbearance of such money, whichever is
the lesser sum.
4. Deleted intentionally.
5. SERVICES BY LANDLORD. Landlord agrees to furnish the
following services for the Leased Premises: (i) air conditioning, both
heating and cooling (as required by the seasons), from 10 a.m. to 6:00
p.m. on weekdays and on Saturdays from 8:00 a.m. to 1:00 p.m. (except
on legal holidays designated in the Building Rules and Regulations) and
at such temperatures and in such amounts as may in the judgment of
Landlord be required for comfortable use and occupancy under normal
business operations; provided, that circulating air will not be
available other than by air conditioning and if tenant shall require
air conditioning at any time other than the hours and the days above
specified. Landlord shall furnish the same for the area or areas
specified in a written request of Tenant delivered to the
superintendent of the Building before 3:00 p.m. of the business day
preceding the extra usage, and for such service tenant shall pay
Landlord the Overtime Charge as additional rent within five (5) days
after receipt of a xxxx therefore; (ii) water at points of supply
provided for general use of tenants of the Building: (iii) janitor and
maid service to the Leased Premises on weekdays other than holidays and
such window washing and wall cleaning as may in the judgment of
Landlord be reasonably required; provided, however, that Tenant may
elect to supply Tenant's own janitorial and maid service by giving
Landlord thirty (30) days prior written notice and in such an event,
tenant will be granted a monthly credit against the Minimum Rent
payable under the terms of Paragraph 1(k) hereof equivalent to the
Tenant's prorata share of the costs Landlord is paying for such
cervices on a monthly basis as of the date of this lease. Which prorata
share shall be that proportion of Landlord's costs determined by
multiplying such costs by a fraction, the numerator of which is the
square footage of the Leased Premises and the denominator of which is
the total square footage of the Building covered by Landlord's contract
for such services' provided further, however, that Tenant shall receive
the foregoing credit only so long as the level of set-vice is equal to
or exceeds the level of service which would have been provided under
Landlord's contract as reasonably determined by Landlord; (iv) restroom
facilities; (v) electric lighting for all public areas and special
service areas of the Building in the manner and to the extent deemed by
Landlord to be reasonable and standard including replacement of
Buildings standard light bulbs and tubes; and (vi) a twenty-four (24)
hour monitored security system similar or comparable to that presently
maintained.
6. (a) TENANT'S ELECTRICITY CHARGE . Landlord shall, provided
Tenant is not in default of its obligations under this Lease, furnish
sufficient power for lighting and for typewriters, voice writers,
calculating machines, and other standard office machines of similar low
electrical consumption width use Voltage of 110 volts or lower.
Landlord will provide power as required by tenant for laboratory
equipment which requires up to 240 volts through the then existing
feeders servicing the Building and will xxxx Tenant for its excess
electricity requirements as set forth below. If Tenant has any
equipment or machines that require excess counts of electricity,
Landlord reserves the right, at its sole option except as provided
hereinafter, to install a separate meter(s), at tenant's expense, to be
reimbursed to Landlord as additional rent upon demand. For the Leased
Premises or any part or parts thereof. If tenant has excess electricity
requirements for which Landlord does not elect to install separate
meter(s), Landlord's engineer may, but shall not be obligated to,
determine the amount of excess electricity to be allocated to Tenant
based on the power requirements of any such equipment, machines, or
special lighting. If Tenant does not agree with the amount of such
allocation, tenant may require Landlord to exercise Landlord's option
to install separate meter(s) by giving written notice to Landlord. All
installations of electrical fixtures, appliances, and equipment within
the Leased Premises shall be subject to Landlord's prior written
approval. All replacements lighting tubes and bulbs required in
Building standard fixtures in the Leased Premises will be furnished and
installed by Landlord at Landlord's expense. Whenever heat-generating
machines or equipment (other than such standard office machines) which
affect the temperatures otherwise maintained by the air conditioning
system, are used in the Leased Premises by Tenant, Landlord shall have
the right to install supplemental air conditioning units in the Leased
Premises, and the cost thereof, including the cost of installation,
operation, use and maintenance, shall be paid as additional rent by
tenant to Landlord on demand. Tenant covenants and agrees that at all
times its use of electric current shall never exceed the capacity of
existing feeders to the building, or the risers or wiring
installations. Any riser or risers or wiring to meet Tenant's excess
electrical requirements will be installed by Landlord upon written
request of tenant, at the sole cost and expense of tenant to he
reimbursed to Landlord an additional rent upon demand, if, in
Landlord's sole judgment the same are necessary and will not cause
permanent damage or injury to the building or the Leased Premises or
cause or create a dangerous or hazardous condition or entail excessive
or unreasonable alterations, repairs or expense or interfere with or
disturb other tenants or occupants.
Notwithstanding anything to the contrary hereinbefore contained,
it is understood and agreed that electricity consumed in the Leased
Premises other than electricity for the heating, ventilating and air
conditioning system is metered through a sub meter installed by
Landlord (the "Meter"). Should Tenant's consumption of electricity in
the Leased Premises during any calendar month or partial calendar month
during the term hereof as measured by the Meter exceed seventy (70)
kilowatt hours per day for such month (the "Excess Usage"), Tenant
shall pay the costs of the Excess Usage to Landlord as Additional Rent
hereunder within fifteen (15) days after Tenant receives a xxxx
therefor from Landlord. All such charges shall be at the same rate for
electricity, which Landlord is being charged by the public utility
serving the Building.
(b) Tenant's Water Charge. Not withstanding anything to the
contrary contained in this lease, it is understood and agreed that
water consumed in the Leased Premises other than for drinking and
restrooms is metered through a submeter installed by landlord (the
"Water Meter"). Tenant shall pay Landlord the costs of such water as
Additional Rent hereunder based on actual usage as measured by the
water Meter at a cost equal to the actual charges therefor to Landlord
by the local water utility within fifteen (15) days after Tenant
receives a xxxx therefor from Landlord.
7. Service Interruptions. Landlord does not warrant that the
services provided for in Paragraphs 5 and 6 above will be free from
any slow-down, interruption or stoppage pursuant to voluntary
agreement by and between Landlord and governmental bodies and
regulatory agencies or caused by the maintenance, repair,
substitution, renewal, replacement, or improvement of any of the
equipment involved in the furnishing of any such services or caused by
changes of services, alterations, strikes, lock-outs, labor
controversies, fuel shortages, accidents acts of God, the elements, or
any other cause beyond the reasonable control of Landlord, and
specifically no such slow-down, interruption, or stoppage of any such
services shall ever be construed as an eviction, actual or
constructive, of Tenant nor shall same cause any abatement of the
Minimum Rent payable hereunder or in any manner or for any purpose
relieve Tenant from any of its obligations hereunder, and in no event
shall Landlord he liable for damage to persons or property, or in
default hereunder, as a result of such slow-down, interruption, or
stoppage. Landlord agrees to use due diligence to resume the service
upon any such slow-down, interruption, or stoppage.
8. Operating Costs. Operating Costs (as hereinafter defined) for
1992 (the "Base Year") shall be calculated by Landlord. Landlord shall
split the Base Year Operating Costs into two parts, the first of which
shall consist of taxes, special real estate assessments, electricity
and other utility costs, and insurance premiums (hereinafter referred
to as "Unrestricted Items") and the second of which shall consist of
all other Operating Costs (hereinafter referred to as "Restricted
Items"). Operating Costs per square foot shall be calculated for both
Unrestricted Items and Restricted Items by dividing the Unrestricted
Items and Restricted Items by the total square footage of the Building
(i.e. approximately 205.893 square feet). Such Operating Costs per
square foot shall be the "Base Year Operating Costs". Tenant shall pay
Landlord for each calendar year or partial calendar year during the
term hereof increases in the Operating Costs per square foot for
Unrestricted Items and Restricted Items over the Base Year Operating
Costs (hereinafter referred to as "Excess Operating Costs") for each
square foot of the leased Premises (i.e. approximately 21,733 square
feet): provided, however, that the Operating Costs per square foot for
Restricted Items may not for the purposes hereof increase by more than
five percent (5%) per calendar year on a compounded cumulative basis.
The term "Operating Costs" as used herein shall mean and include
all expenses (other than expenses for electricity covered by the terms
of Paragraph 6(a) hereof and water covered by the terms of Paragraph
6(b) hereof) reasonably and directly incurred in the normal management,
operating, maintenance, repair and security of the Building, including
the grounds. Operating Costs shall include, but not be limited to, the
cost of all utilities (except expenses for electricity covered by the
terms of Paragraph 6(a) hereof and water covered by the terms of
Paragraph 6(b) hereof), building supplies, janitorial service (except
if Tenant elects to provide its own janitorial and maid service,
janitorial and maid service for any period of time when Tenant is
supplying such service shall not be included under Operating Costs to
the extent such charges apply to occupied Tenant space in the Building
as opposed to common use areas), maintenance and repairs, fire and
extended coverage, public liability and other insurance, all labor and
employee benefit costs (including wages, salaries and fees of all
personnel engaged in the management, operating, maintenance, repair and
security of the Building), ad valorem taxes and assessments and
amortization of capital improvements costs which reduce operating
expenses or are required to meet governmental regulations, management
fees, consulting fees, legal fees and accounting fees, and the fair
market rental of the property managers' offices in the Building,
together with payments or credits Landlord may make to any tenant or
tenants of the Building in lieu of Landlord providing any of the
services or paying for any of such costs.
In addition to Tenant's obligations to pay Minimum Rent, Tenant
shall pay to Landlord monthly in advance on or before the first day
in each calendar month during the term hereof, commencing on January
1, 1992, one twelfth (1/12th) of Landlord's estimate of tenant's
proportionate share of Excess Operating Costs for the applicable
calendar year. Landlord reserves the right to adjust the estimate at
any time during the applicable calendar year if actual Excess
Operating Costs are substantially different from the earlier
estimate, and thereafter, payments by Tenant pursuant to this
paragraph shall be adjusted accordingly, For the purposes hereof, the
terms "calendar year" shall also include partial calendar years.
After the expiration of each calendar year during the term hereof
after the Base Year, as hereinbefore defined, Landlord shall
furnish Tenant with a statement of the actual Excess Operating Costs
of the Building. In the event the sum of the payments made by Tenant
during the preceding calendar year or partial calendar year pursuant
to the foregoing exceeds the amount which Tenant would have been
obligated to pay if the actual Excess Operating Costs for such year
were used in lieu of Landlord's estimate thereof, the difference
shall be credited by Landlord to Tenant's account against the next
payments due by Tenant under the provisions hereof. In the event the
sum of payments made by Tenant during the preceding calendar year or
partial calendar year pursuant to the above paragraph is less than
the amount which Tenant would have been obligated to pay if the
actual Excess Operating Costs for such year or partial year were used
in lieu of Landlord's estimate thereof, Tenant shall pay the amount
of such difference to Landlord in cash within thirty (30) days after
delivery of any invoice for such by Landlord accompanied by a
statement of the actual Excess Operating Costs for such year. Any
payments by Tenant which exceed Tenant's prorate share of Excess
Operating Costs for such period shall be refunded by Landlord to
Tenant.
9. ACCEPTANCE OF LEASED PREMISES AND BUILDING BY TENANT. The
taking of possession of the Leased Premises by Tenant shall be
conclusive evidence that "Tenant" accepts the Leased Premises, the
Building and all improvements and appurtenances thereto as suitable
for the purposes herein set out as being in a good and satisfactory
condition.
10. ASSIGNMENT AND SUBLETTTNC. (a) Tenant shall not, without any
prior written consent of Landlord: (i) assign or in any manner
transfer this lease or any estate or interest therein; or (ii) permit
any assignment of this lease or any estate or interest therein by
operation of law; or (iii) sublet the Leased Premises or any part
thereof; or (iv) grant any license, concession, or other right of
occupancy of any portion of the Leased Premises; or (v) permit the
use of the Leased Premises by any parties other than Tenant, its
agents and employees. Landlord agrees that its consent will not be
unreasonably withheld or delayed with respect to a proposed sublease
or assignment so long as any such proposed sublease or assignment
meets the following criteria:
(i) The use contemplated by such sublease or assignment
is in accordance with the terms of this lease and is
for an office purpose which is consistent with the
image of Building as reasonably determined by
Landlord; and
(ii) The proposed sublessee or assignee will not engage
in operations which violate any restrictive
covenant affecting the Building; and
(iii) The proposed sublease or assignment is made subject
to this lease; and
(iv) No option provided for in this lease will inure to
the benefit of any such sublessee or assignee; and
(v) A full and complete copy of the proposed sublease or
assignment, together with a statement from Tenant
outlining the financial terms of the proposed
sublease or assignment will be provided to Landlord;
and
(vi) The proposed sublessee or assignee will occupy that
portion of the Leased Premises covered by such
sublease or assignment; and
(vii) The proposed sublessee or assignee is a financially
responsible entity as reasonably determined by
Landlord.
Consent by Landlord to one or more assignments or sublettings shall
not operate as a waiver of Landlord's rights as to any subsequent
assignments and sublettings. Notwithstanding any assignment or
subletting, Tenant and any guarantor of Tenant's obligations under
this lease shall at all times remain jointly and severally liable
for the payment of the rent and all other payment obligations
herein specified and for compliance with all of Tenant's other
obligations under this lease. If an event of default, as
hereinafter defined, should occur while the Leased Premises or any
part thereof are then assigned or sublet, Landlord, in addition to
any other remedies herein provided or provided by law, fly at its
option collect directly from such assignee or sublessee all rents
becoming due to Tenant under such assignment or sublease and apply
such rent against any sums due to Landlord by Tenant hereunder, and
Tenant hereby authorizes and directs any such assignee or sublessee
to make such payments of rent direct to Landlord upon receipt of
notice from Landlord. No direct collection by Landlord from any
such assignee or sublessee shall be construed to constitute a
novation or a release of tenant or any guarantor of Tenant from the
further performance of their obligations hereunder. Receipt by
Landlord of rent from any assignee, sublessee, or occupant of the
Leased Premises shall not be deemed a waiver of the covenant in
this lease contained against assignment and subletting or a release
of Tenant or any guarantor of Tenant's obligations under this
lease. the receipt by Landlord from any such assignee or sublessee
obligated to make payments of rent shall be a full and complete
release, discharge, and acquittance to such assignee or sublessee
to the fltent of any such amount of rent so paid to landlord.
Landlord is authorized and empowered, on behalf of Tenant, to
endorse the name of Tenant upon any check, draft, or other
instrument payable to Tenant evidencing payment of rent, or any
part thereof, and to receive and apply the proceeds therefrom in
accordance with the terms thereof. Tenant shall not mortgage,
pledge, or otherwise encumber its interest in this lease or in the
teased Premises.
(b) If Tenant requests Landlord's consent to an assignment
of the lease or subletting of all or a part of the Leased Premises,
it shall submit to Landlord, in writing, the name of the proposed
assignee or subtenant and the nature and character of the business
of the proposed assignee or subtenant. Landlord shall have the
option, to be exercised within thirty (30) days from submission of
Tenant's written request, to cancel this lease (or the applicable
portion thereof as to a partial subletting) as of the commencement
date stated in the above-mentioned request. If Landlord elects to
cancel this lease as stated then the term of this lease, and the
tenancy and occupancy of the Leased Premises by Tenant thereunder,
shall cease, determine, expire, and come to an end as if the
cancellation date was the original termination date of this lease.
If Landlord does not thus cancel this lease and if the request of
Tenant to sublet or assign is in accordance with Subparagraph (a)
hereof, landlord will consent to such subletting or assignment.
(c) Landlord shall have the right to transfer, assign, or
convey, in whole or in part, the Building and the Land and any and
all of its rights under this lease, and in the event Landlord
transfers, assigns, or conveys its rights under his lease, Landlord
shall thereby be released from any further obligations hereunder
and Tenant agrees to look solely to such successor in interest of
the Landlord for performance of such obligations.
11. (a) USE AND OCCUPANCY. Tenant agrees that the Leased
Premises shall be used and occupied by Tenant only for the
Permitted Use and for no other purpose, and Tenant agrees to use
and maintain the leased Premises in a clean, careful, safe, and
proper manner and to comply with all applicable laws ordinances,
orders, rules, and regulations of all governmental bodies (state,
federal, and municipal). Tenant will not in any manner deface or
injure the Building or the land or any part thereof or overload the
floors of the Leased Premises. Tenant agrees not to use or allow
or permit the Leased Premises to be used for any purpose
prohibited by law or by any restrictive covenants applicable to the
Building and land, and Tenant agrees not to commit waste or suffer
or permit waste to be committed or to allow or permit any nuisance
on or in the leased Premises. Tenant will not use the Leased
Premises for lodging or sleeping purposes or for any immoral or
illegal purposes. "Tenant" will conduct its business and occupy the
Leased Premises and will control its agents, employees, licensees,
and invitees in such a manner so as not to create any nuisance or
interfere with, annoy, or disturb any of the other tenants in the
Building or Landlord in its management of the Building and so as
not to injury the reputation of the Building. Tenant shall not use
the Leased Premises or allow or permit same to be used in any way
or for any purpose that landlord may deem to be extra hazardous on
account of the possibility of fire or other casualty or which will
increase the rate of fire or other insurance for the Building or
its contents or in respect of the operation of the Building or
which may render the Building uninsurable at normal rates by
responsible insurance carriers authorized to do business in the
State of Texas or which may render void or voidable any insurance
on the Building. Tenant shall not erect, place, or allow to be
placed any sign, advertising matter, stand, booth, or showcase in
or upon the doorsteps, vestibules, halls, corridors, doors, walls,
windows, or pavement of the Building or the land (except for
lettering on the door or doors to the teased Premises as allowed by
the Rules and Regulations forming a part of this tease) without the
prior written consent of Landlord.
(b) Hazardous Substances. Tenant covenants and agrees (i) that
Tenant has not suffered, permitted, introduced or maintained in, on
or about any portion of the Leased Premises since the commencement
of the term of the Xxxxxxxxxx Lease (as defined in Paragraph C of
Exhibit "D" to this Lease), any Hazardous Material [as defined in
Section ll(d)(i)) except as may be permitted by law, it being
understood that Tenant may, from time to time, handle such
substances in conjunction with Tenant's laboratory operations.
Tenant further covenants and agrees to indemnify, protect and save
Landlord harmless against and from any and all damage, losses,
liabilities, obligations, penalties, claims, litigation, demands,
defenses, judgments, suits, proceedings, costs, disbursements or
expenses of any kind or of any nature whatsoever (including, without
limitation. attorneys' and experts' fees and disbursements) which
may at any time be iniposed upon, incurred by or asserted or awarded
against landlord and arising from or out of any Hazardous Material
on, in, under or affecting all or any portion of the Building.
Leased premises, or Property, introduced by, or on behalf of,
Tenant, including, without limitation, (i) the costs of removal of
any and all Hazardous Materials from all or any portion of the
Building, Leased Premises or Property, or released, discharged,
leaked or spilled from the Building, teased Premises or Property
into the air, surface water, groundwater or land, and (ii) any costs
incurred to comply with or as a result of the violation of any
Environmental Requirements [as defined in Section ll(d)(ii)]. The
preceding portions of this provision do not apply to Hazardous
Material which may be located in the Building, Leased Premises, or
Property at or prior to the initial commencement (hereto or
hereafter) of any work, construction, repairs or alterations therein
by Tenant under the Xxxxxxxxxx Lease
(c) Remediation. Notwithstanding anything contained herein to
the contrary, Tenant shall within a period of thirty (30) days
following the date this Lease is cancelled or terminated or expires
by virtue of its own terms, cause to be conducted by a duly licensed
environmental consultant, inspections and tests in order to
determine if any Hazardous Material [as defined in Section ll(d)(i)]
exists in, on or about the Leased Premises in violation of any
Environmental Requirements [as defined in Section ll(d)(ii)] (or
materials ,which would constitute danger to any occupants or guests
in the Leased Premises or Building) and Tenant' shall (i) furnish to
landlord copies of any findings, conclusions and/or reports
respecting such investigations and/or tests, and (ii) be responsible
for restoring the teased Premises and Building with respect to any
damages incurred incidental thereto as the result of Tenant's or
Tenant's agents, employees or contractors introduction of such
Hazardous Material to the Leased Premises or the Building. Any such
reports shall include a so-called "Phase I" and, if necessary,
"Phase II" environmental assessments, which shall be, addressed to
Tenant, In the event any such report indicates the presence of any
Hazardous Material [as defined in Section ll(d)(i)] (or materials
which would constitute danger to any occupants or guests in the
Leased Premises or Building), then Tenant shall at Tenant's sole
cost and expense conduct such cleanup operations as may he
reasonably required to clear such Hazardous Material (as defined in
Section l1(d)(i)] from the Leased Premises and Building in
accordance with the then existing Environmental Requirements Law
defined in Section [l(d)(ii)] applicable thereto and Tenant shall
Indemnify, save and hold Landlord harmless from any claims. losses,
damages or judgments as a result of the introduction of such
substances into the Leased Premises and Building and/or resulting
because of the removal thereof.
(d) Definitions
(i) Hazardous Materials
Hazardous Material means any substance: (1) the
presence of which requires investigation or
remediation under any federal. state or local
statute. regulation, ordinance, order, action,
policy or common law; or (2) which is or becomes
defined as a "hazardous waste," "hazardous
substance", pollutant or contaminant under any
federal, state, or local statute, regulation, rule,
or ordinance or amendments thereto including,
without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act (421 U.S.C.
Section 9601 et seq.) and/or the resource
Conservation and Recovery Act (42 V.S.C, Section
6901 et seq.); or (3) which is toxic, explosive,
corrosive, flammable, infectious, radioactive,
carcinogenic, mutagenic, or otherwise hazardous and
is or becomes regulated by the governmental
authority, agency, department, commission, board or
instrumentality of the United States, the State of
Texas or any political subdivision thereof: or (4)
the presence of which on the Leased Premises causes
or threatens to cause a nuisance upon the Leased
Premises or to adjacent properties or poses or
threatens to pose a hazard to the health or safety
of persons on or about the teased Premises: or (5)
without limitation, which contains polychlorinated
biphenyls (PCBs) or asbestos.
(ii) Environmental Requirements
Environmental requirements means all applicable
present and future statutes, regulations, rules,
ordinances, codes, licenses, permits, orders,
approvals, plans, authorizations,. concessions,
franchises. and similar items, of all governmental
agencies, departments, commissions, boards, bureaus
or instrumentalities of the United States, states
and political subdivisions thereof and all
applicable judicial, administrative, and regulatory
decrees, judgments, and orders relating to the
protection of human health or the environment,
including, without limitation: (1) all requirements,
including but not limited to those pertaining to
reporting, licensing, permitting, investigation, and
remediation of emissions, discharges, releases, or
threatened releases of Hazardous Material, chemical
substances, pollutants, contaminants, or hazardous
or toxic substances, materials or wastes, whether
solid, liquid or gaseous in nature, into the air,
surface water, groundwater, or land, or relating to
the manufacture, processing, distribution, use,
treatment, storage, disposal, transport, or handling
of chemical substances, pollutants, contaminants, or
hazardous or toxic substances, materials, or tastes,
whether solid. fluid, or gaseous in nature: and (2)
all requirements pertaining to the protection of the
health and safety of employees or the public.
(e) Survival and Investigation. The obligations of Tenant in
subsections 11(b), (c), (d) and (e) shall survive the cancellation,
expiration or termination of the Lease and shall not be affected by
an investigation by or on behalf of Landlord or by any information
which Landlord may have or obtain with respect thereto.
12. TENANTS REPAIRS AND ALTERATIONS. Tenant will not in any
manner deface or injure the Leased Premises, the Building or any
improvements on the land herein described, and will pay the cost of
repairing any damage or injury done to the foregoing facilities by
Tenant or Tenant's agents, employees or invitees. Tenant shall
throughout the Lease Term take good care of the premises and keep
them free from waste and nuisance of any kind. Tenant agrees to
keep the premises, including all fixtures installed by Tenant and
any plate glass and special store fronts, in good condition and
make all necessary nonstructural repairs except those caused by
fire, casualty or acts of God covered by Landlord's tire insurance
policy covering the Building, provided that Tenant shall not be
obligated to repair broken exterior plate glass unless it appears
that such glass was broken by an impact originating in the leased
Premises. If Tenant fails to make such repairs within fifteen (15)
days after the occurrence of the damage or injury, Landlord may, at
its option, make such repair, and Tenant shall, upon demand
therefor, pay Landlord for the cost thereof. Tenant will not make
or allow to be made any alterations or physical additions in or to
the premises without the prior written consent of Landlord. All
maintenance. repairs, alterations, additions or improvements shall
be conducted only by contractors and subcontractors approved in
writing by Landlord, it being understood that Tenant shall procure
and maintain, and shall cause such contractors and subcontractors
engaged by or on behalf of Tenant to procure and maintain,
insurance coverage against such risks, in such amounts and with
such companies as landlord may require in connection with any such
maintenance, repair, alteration, addition or improvement.
13. MECHANIC'S XXXXX . Tenant will not permit any mechanic's
or materialman's lien or liens to be placed upon the Leased
Premises, the Building or the lands herein described during the
term, hereof ceased by or resulting from any work performed
materials furnished or obligation incurred by or at the request of
Tenant and nothing in this Lease contained shall be deemed or
construed in any way as constituting the consent or request of
Landlord, express or implied, by inference or otherwise, to any
contractor, subcontractor, laborer, or materialman for the
performance of any labor or the furnishing of any materials for any
specific improvement, alteration, or repair of or to the Leased
Premises or any part thereof, nor as giving Tenant any right,
power, or authority to contract for or permit the rendering of any
services or the furnishing of any materials that would give rise to
the filing of any mechanic's, materialman's or other liens against
the interest of Landlord in the Leased Premises. In the case of the
filing of any lien on the interest of Landlord or Tenant in the
Leased Premises, Tenant shall cause the same to be discharged of
record within twenty (20) days after the filing of same. If Tenant
shall fail to discharge such lien within such period, then, in
addition to any other right or remedy of landlord, Landlord may.
but shall not be obligated to, discharge the same either by paying
the amount claimed to be due or by procuring the discharge of such
lien by deposit in court or bonding. Any amount paid by Landlord
for any of the aforesaid purposes, or for the satisfaction of any
other lien, not caused or claimed to be caused by Landlord, and all
reasonable legal and other expenses of Landlord, including
reasonable counsel fees, in defending any such action or in or
about procuring the discharge of such lien, with all necessary
disbursements in connection therewith, with interest thereon at the
rate set out in Paragraph 3(c) hereof,
14. INDEMNIFICATION
(a) Except to the extent of Landlord's negligence or willful
misconduct, Tenant agrees to indemnify Landlord and save it
harmless from all suits, actions, damages, liability and expense
in connection with loss of life, bodily or personal injury or
property damage (and each and all of them) arising from or out of
any occurrence in, upon or from the Leased Premises or resulting
from or attributable to the occupancy or use by Tenant of said
Leased Premises or any part thereof, or occasioned wholly or in
part by any act or omission of Tenant, its agents, contractors,
employees, servants, invitees, licensees or concessionaires.
Tenant shall store its property in, and shall occupy, the Leased
Premises at its own risk, and releases Landlord, to the fullest
extent permitted by law, from all claims of every kind resulting
in loss of life, personal or bodily injury or property damage, no
matter when or where or to whom same occurs without being limited
by any other provision of this Lease.
(b) Landlord shall not be responsible or liable to tenant or
to any other person or persons for any loss or damage to either the
person or property of Tenant or to any other person or persons,
landlord shall not be responsible for any injury, loss or damage to
any person or to any property of tenant or any other person caused
by or resulting from bursting, breakage or from leakage, steam, or
snow or ice, running, backing up, seepage or the overflow of water
or sewage in any part of the teased Premises, the building or the
lands herein described, or for any injury or damage caused by or
resulting from acts of God or the elements, or for any injury or
damage caused by or resulting from any defect or negligence in the
occupancy, construction, operation or use of any of the Leased
Premises, machinery, apparatus or equipment by anyone or by or from
the negligence of any occupant of the Building.
15. INSURANCE, tenant shall, at its sole cost and expense,
procure and maintain during the term hereof a policy or policies of
insurance insuring Tenant against any and all liability for injury
to or death of a person or persons and for damage to or destruction
of property occasioned by or arising out of or in connection with
the use or occupancy of the Leased Premises or by the condition of
the Leased Premises (including the contractual liability of Tenant
to indemnify landlord and/or property damages, or with such other
limits as may be required by landlord, and to be written by an
insurance company or companies satisfactory to landlord and
licensed to do business in the State of Texas with Landlord named
as an additional insured without restriction. If Tenant has an
umbrella or excess policy, tenant will name landlord as an
additional insured without restriction on all layers of umbrella or
excess policies. Tenant shall obtain a written obligation on the
part of each insurance company to notify landlord at least ten (10)
days prior to cancellation of such insurance. Such policies or duly
executed certificates of insurance relating thereto shall be
promptly delivered to landlord within ten (10) days after the
execution of this Lease and renewals thereof as required shall be
delivered to Landlord at least thirty (30) days prior to the
expiration of the respective policy terms. If tenant fails to
comply with the foregoing requirements relating to insurance,
landlord may obtain such insurance and Tenant shall pay as
additional rent to landlord on demand the premium cost thereof plus
interest at the rate set out in Paragraph 3(c) hereof.
16. WAIVER OF SUBROGATION. Each party hereto hereby waives
any and every claim which arises or may arise in its favor and
against the other party hereto, or anyone claiming through or under
them, by way of subrogation or otherwise, during the term of this
Lease or any extension or renewal thereof for any and all loss of,
or damage to, any of its property or property of others it has in
its care, custody or control or loss of use of such property
(whether or not such loss or damage is caused by the fault or
negligence of the other party or anyone for whom said other party
may be responsible), which loss or damage is covered by valid and
collectible fire and extended coverage insurance policies, to the
extent that such loss or damage is recovered under said insurance
policies. Said waivers shall be in addition to, and not in
limitation or derogation of, any other waiver or release contained
in this tease with respect to any loss or damage to property of the
parties hereto. Inasmuch as the above mutual waivers will preclude
the assignment of any aforesaid claim by way of subrogation (or
otherwise) to an insurance company (or any other person), each
party hereto hereby agrees immediately to give to each insurance
company which has issued to it policies of fire and extended
insurance coverage written notice of the terms of said mutual
waivers, and to have said insurance policies properly endorsed, it
necessary, to prevent the invalidation of said insurance coverages
by reason of said waivers.
17. CERTAIN RIGHTS RESERVED BY LANDLORD. Landlord shall
have the following rights, exercisable without notice and without
liability to tenant for damage or injury to property, persons, or
business and without effecting an eviction, constructive or actual,
or disturbance of Tenant's use or possession or giving rise to any
claim for setoff or abatement of rent:
(a) To change the Building's name or Street address.
(b) To install, affix, and maintain any and all signs
on the exterior and interior of the Building, subject to the
provisions of Rider 1 of this Lease.
(c) To designate and approve, prior to installation,
all types of window shades, blinds, drapes, awnings, window
ventilators, and similar equipment, and to control all
internal lighting that nay be visible from the exterior of
the Building.
(d) To enter upon the Leased Premises at reasonable
hours to inspect same or clean or wake repairs or alterations
(but without any obligation to do so. except as expressly
provided for herein) or to show the Leased Premises to
prospective lenders or purchasers, and, during the last
twelve (12) months of the term, to show them to prospective
tenants at reasonable hours and, if they are vacated, to
prepare them for re-occupancy.
(e) To retain at all times, and to use in appropriate
instances, keys to all doors within and into the teased
Premises. No locks shall be changed or added without the
prior written consent of Landlord.
(f) To decorate and to make repairs, alterations,
additions, changes, or improvements, whether structural or
otherwise, in and about the Building, or any part thereof,
and for such purposes to enter upon the teased Premises and,
during the continuance of any of said work, to temporarily
close doors, entryways, public space, and corridors in the
Building, to interrupt or temporarily suspend Building
services and facilities and to change the arrangement and
location of entrances or passageways, doors and doorways,
corridors, elevators, stairs, toilets, or other public parts
of the Building, an without abatement of rent or affecting
any of Tenant's obligations hereunder, so long as the teased
Premises are reasonably accessible.
(g) To grant to anyone the exclusive right to conduct
any business or render any service in or to the Building,
provided such exclusive tight shall not operate to exclude
tenant from the use expressly permitted herein,
(h) To take all such reasonable measures as landlord
may deem advisable for the security and safety of the
Building and its occupants,
(j) Landlord shall have the right to transfer, assign,
or convey. in whole or in part, the Building and the land and
any and all of its rights wider this tease, and in the event
Landlord transfers, assigns, or conveys its rights under this
tease, Landlord shall thereby be released from any further
obligations hereunder and Tenant agrees to look solely to
such successor in interest of the Landlord for performance of
such obligations.
18. FIRE OR OTHER CASUALTY. If the Leased Premises or any
part thereof shall be damaged by fire or other casualty, Tenant
shall give prompt written notice thereof to Landlord. In case the
Building shall be so damaged by fire or other casualty that
substantial alteration or reconstruction of the Building shall, in
Landlords sole opinion, be required (whether or not the Leased
Premises shall have been damaged by such fire or other casualty) or
in the event any mortgagee under a mortgage or deed of trust
covering the Building should require that the insurance proceeds
payable as a result of said fire or other casualty be used to
retire the mortgage debt, Landlord may, at its option, terminate
this Lease and the term and estate hereby granted by notifying
Tenant in writing of such termination within sixty (60) days after
the date of such damage, in which event the rent hereunder shall be
abated as of the date of such damage. If Landlord does not thus
elect to terminate this Lease, Landlord shall within seventy-five
(75) days after the date of such damage commence to repair and
restore the Building and shall proceed with reasonable diligence to
restore the Building (except that Landlord shall not be responsible
for delays outside its control) to substantially the same condition
in which it was immediately prior to the happening of the casualty,
except that Landlord shall not be required to rebuild, repair or
replace any part of Tenant's furniture or furnishings or of
fixtures and equipment removable by Tenant under the provisions of
this tease. Landlord shall not be liable for any inconvenience or
annoyance to tenant or injury to the business of Tenant resulting
in any way from such damage or the repair thereof; except that
during the time and to the extent that the Leased Premises are
unfit for occupancy, the Landlord shall, at its option, either
furnish the Tenant with comparable space at prevailing market rates
or a fair diminution of rent, the choice of which will be at the
landlord's sole discretion, if the damages are caused by the
negligence of Tenant, its agents, servants, employees, contractors,
patrons, guests, licensees, or invitees there will be no abatement
of rent and Tenant will be liable for any damages in excess of the
amount paid by insurance proceeds received by Landlord. Any
insurance which may be carried by Landlord or Tenant will be liable
for any damages in excess of the amount paid by or insurance
proceeds received by Landlord. Any insurance which may be carried
by Landlord Tenant against loss or damage to the Building or to the
Leased Premises shall be for the sole benefit of the party carrying
such insurance and under its sole control.
19. CONDEMNATION. If the whole or substantially the whole of
the Building and land or of the Leased Premises should be taken
for any public or quasi-public use under any governmental law,
ordinance or regulation or by right of eminent domain or should be
sold to the condemning authority in lieu of condemnation, then
this Lease shall terminate as of the date when physical possession
of the Building and land or the Leased Premises is taken by the
condemning authority. If less than the whole or substantially the
whole of the Building and land or the Leased Premises are affected
thereby, Landlord may terminate this Lease by giving written
notice thereof to Tenant within sixty (60) days after the right of
election accrues, in which event this Lease shall terminate as of
the date when physical possession of such portion of the Building
and land or Leased Premises is taken by the condemning authority.
If upon any such taking or sale of less than the whole or
substantially the whole of the Building and land or the teased
Premises this Lease shall not be thus terminated, the rent payable
hereunder shall be diminished by an amount representing that part
of said rent as shall property be allocable to the portion of the
Leased Premises which was so taken or sold and Landlord shall, at
Landlord's sole expense, restore and reconstruct the Building and
land and the Leased Premises to substantially their former
condition to the extent that the same, in Landlord's judgment, may
be feasible, but such work shall not exceed the scope of the work
done by Landlord in originally constructing the Building and
installing tenant improvements in the teased Premises nor shall
Landlord in any event be required to spend for such work an amount
in excess of the amount received by Landlord as compensation for
damages (over and above amounts going to the mortgagee of the
property taken) for the part of the Building and land or the
teased Premises so taken. Landlord shall be entitled to receive
all of the compensation awarded upon a taking of any part or all
of the Building and land or the Leased Premises including any
award for the value of unexpired term of this Lease and Tenant
shall not be entitled to and expressly waives all claim to any
such compensation provided, however, Tenant shall be entitled to
receive an award for damages to Tenant's leasehold improvements.
20. TAXES. Tenant shall be liable for all taxes levied or
assessed against personal property, furniture or fixtures placed
by Tenant in the teased Premises, and if any such taxes for which
Tenant is liable are in any way levied or assessed against
Landlord, tenant shalt pay to Landlord upon demand that part of
such taxes for which Tenant is primarily liable hereunder.
Notwithstanding any other provision contained in this tease.
Tenant shall pay any and all licenses, charges and other fees of
every kind and nature as and when they become due and before the
saint become delinquent arising out of or in connection with use
and occupancy of the Leased Premises, including, but not limited
to, license fees, business license tax, the amount of any
privilege, sales, excise or other tax (other than income) imposed
upon rentals herein provided to be paid by Tenant or upon Landlord
in an amount measured by such rentals received by Landlord.
21. SURRENDER UPON TERMINATION. At the termination of this
Lease, whether caused by lapse of time or otherwise. Tenant shall at
once surrender possession of the Leased Premises and deliver the
Leased Premises to Landlord in as good repair and condition as at
the commencement of Tenant's occupancy, reasonable wear and tear and
damages or destruction by fire or other insured casualty excepted,
and shall deliver to Landlord all keys to the Leased Premises, and,
if such possession is not immediately surrendered, Landlord may
forthwith enter upon and take possession of the Leased Premises and
expel or remove Tenant and any other person who may be occupying
said premises, or any part thereof, by force, if necessary, without
having any civil or criminal liability therefor. All alterations,
additions, or improvements (whether temporary or permanent in
character) made in or upon the Leased Premises shall, if Landlord
elects, be Landlord's property on termination of this Lease and
shall remain on the Leased Premises without compensation to Tenant.
All furniture, movable trade fixtures, and equipment installed by
Tenant may be removed by Tenant at the termination of this Lease,
All removals permitted herein shall be accomplished in a good
workmanlike manner so as not to damage the Leased Premises or the
Building. Tenant, or Landlord at Tenant's expense, shall repair any
damage to the Leased Premises, the Building or any improvement on
the lands herein described caused by any such removal. All
furniture, movable trade fixtures and equipment installed by tenant
not removed at the end of the tease Term hereof shall thereupon be
conclusively presumed to have been abandoned by Tenant and Landlord
may, at its option, take over the possession of such property and
either (i) declare same to be the property of Landlord by written
notice thereof to Tenant or (ii) at the sole risk, cost, and expense
of Tenant remove the same or any part thereof in any manner that
Landlord shall choose and store the same or any part thereof in any
manner that Landlord shall choose and store the same without
incurring liability to Tenant or any other person.
22. DEFAULT. In the event of default in any of the covenants
or conditions herein, Landlord may assert any remedies provided to
an aggrieved landlord by law, without limiting the generality of the
foregoing, Landlord, at its option, shall have any one or all of the
following remedies which are cumulative and not exclusive: (a)
Landlord may declare the Lease forfeited, but such declaration or
forfeiture shall not terminate Tenant's duty to pay rentals and
additional rent hereunder, nor waive any other rights of Landlord
unless Landlord specifically so states in writing: (b) Landlord may
re-enter the Leased Premises and remove all persons and property,
including that of Tenant or any third persons therefrom, without
being guilty of any manner of trespass or conversion, but any such
re-entry shall not terminate Tenant's duty to pay rentals and
additional rent hereunder nor waive any other rights of Landlord
unless Landlord specifically so states in writing: (c) Landlord may
resume possession of the Leased Premises and relet the same for the
account of Tenant, who shall make good any deficiency: (d) Landlord
may recover all arrearages of rent and additional rent hereunder:
(e) Landlord may declare the entire amount of the rent and
additional rent hereunder, which would have become due and payable
during the term of this Lease, to be due and payable immediately, in
which event, Tenant agrees to pay the same at once, together with
all rents and additional rents theretofore due, to Landlord at the
address specified herein or hereunder; provided, however, that such
payments shall not constitute a penalty or forfeiture or liquidated
damages, but shall merely constitute a penalty or forfeiture or
liquidated damages, but shall merely constitute payment in advance
of the rent for the remainder of the term: (f) Tenant, in addition
to rentals and additional rent hereunder, shall be liable for all
damages and expenses which Landlord has suffered by reason of
Tenant's default: including, but not limited to, damage to the
Leased Premises (which shall be measured at Landlord's option by
landlord's cost to repair the same or by the difference in the
market value of the Leased Premises before and after such damage),
cost of reletting. (e.g., advertising the Leased Premises for lease,
preparation of a new lease agreement, etc.), attorney fees, cost of
court, cost of repossession and other special or consequential
damages: (g) Landlord shall have, in addition to any statutory
liens, the right to seize and possess, as security for all sins due
hereunder from Tenant, all the goods, wares, merchandise, chattels,
implements, fixtures, tools and other personal property which are or
may be put upon the teased Premises and Landlord shall have a lien
upon an such property which may be possessory but shall not be
required to be. Tenant hereby waives all exemptions in connection
with such property, which could otherwise be available to it.
Landlord shall give Tenant ten (10) days written notice of any
default herein. for the purpose of the foregoing. Tenant shall be
deemed to be in default under this Lease if Tenant: (1) has failed
to pay any installment of rent or other amount when due. Whether or
not such payment shall have been demanded: (2) fails to perform or
comply with any of the other conditions or agreements expressed or
implied herein and fails to remedy such lack of compliance within
thirty (30) days after written notice from Landlord of such default;
(3) abandons, vacates or does not occupy the teased Premises for
fourteen (1/4) consecutive days; and (4) liquidates or ceases to
exist, admits insolvency, seeks relief under any law for the relief
of debtors, makes an assignment for the benefit of creditors or is
the subject of a voluntary or involuntary petition in bankruptcy or
receivership, or in the event of any like occurrence which, in the
sole and absolute judgment of Landlord, evidences the serious
financial insecurity of Tenant or if the estate hereby created shall
be levied upon or taken by execution or process of law, then and in
any such event, regardless of any waiver or consent to any earlier
event or events of default. In the event that any court or
governmental authority shall limit any amount, which Landlord may be
entitled to recover pursuant to the terms hereof, Landlord shall be
entitled to recover the maximum amount permitted under law. Nothing
herein contained shall be deemed to limit or restrict Landlord's
recovery from Tenant of the maximum amount permitted under law or of
any other sums or damages which Landlord way be entitled to so
recover in addition to the damages set forth herein, Nothing
contained herein shall be deemed to require Landlord to relet the
Leased Premises or to take any other action with retard to the
Leased Premises and Landlord shall not be liable for any failure to
relet, collect rent, or take any other action with regard to the
teased Premises after termination pursuant to the terms hereof.
Tenant hereby waives any right of redemption, which Tenant may at
any time have by reason of Tenant's default or eviction hereunder.
The parties hereto expressly agree that this Lease and the estate
created hereby shall not continue or inure to the benefit of any
assignee, receiver or trustee in bankruptcy except at the option of
Landlord. In addition to other remedies provided in this Lease,
Landlord shall be entitled, to the extent permitted by applicable
law, to injunctive relief in case of the violation, or attempted or
threatened violation, of any of the covenants, agreements,
conditions or provisions of this Lease, or to a decree compelling
performance of any of. The other covenants, agreements, conditions
or provisions of this Lease, or to any other remedy allowed to
Landlord at law or in equity. Tenant hereby expressly agrees that
the damages provided for herein constitute just compensation for the
loss or damages which may be actually sustained by Landlord and that
such damages are just and reasonable.
23. NO IMPLIED WAIVER The failure of Landlord to insist at
any time upon the strict performance of any covenant or agreement
or to exercise any option, right, power, or remedy contained in
this Lease shall not be construed as a waiver or a relinquishment
thereof for the future. The waiver of or redress for any violation
of any term, covenant, agreement, or condition contained in this
Lease or contained in the Rules and Regulations attached to and
forming a part of this Lease shall not prevent a subsequent act,
which would have originally constituted a violation from having all
the force and effect of an original violation. No express waiver
shall affect any condition other than the one specified in such
waiver and that one only for the time and in the manner
specifically stated. A receipt by landlord of any rent with
knowledge of the breach of any covenant or agreement contained in
this Lease shall not be deemed a waiver of such breach, and no
waiver by Landlord of any provision of this Lease shall be deemed
to have been made unless expressed in writing and signed by
Landlord,
24. ATTORNEYS' FEES AND LEGAL EXPENSES. Each party shall pay
to the other party upon demand all reasonable attorneys fees and
all expenses and court costs of such party incurred in enforcing
any of the obligations of the other party under this Lease.
25. WORK AGREEMENT. The improvements and installations
specified in Exhibit "E" hereof shall be made in accordance with
the plans and specifications provided for in Exhibit "E" on or
prior to the Rental Commencement Date.
26. LANDLORD'S LEIN In addition to the statutory landlord's
lien, Landlord shall have, at all times, and Tenant hereby grants
to Landlord, a valid security interest to secure payment of all
rent and other suns of money becoming due hereunder from tenant,
and to secure payment of any damages or loss which Landlord may
suffer by reason of the breach by Tenant or any covenant,
agreement or condition contained herein, upon all goods, wares,
equipment, fixtures, furniture, improvements and other personal
property of Tenant presently or which may hereafter be situated on
the Leased Premises, and all proceeds therefrom, and such property
shall not be removed therefrom without the consent of Landlord
until all arrearages in rent as well as any and all other sums of
money then due to Landlord hereunder shall first have been paid
and discharged and all the covenants. agreements and conditions
hereof have been fully complied with and performed by Tenant.
Landlord agrees that any such statutory lien or security interest
shall be subject and subordinate to any purchase money security
interest to the extent such purchase money security interest
attaches to Tenant's computer systems or other laboratory
equipment having a unit cost of $20,000.00 or more. Upon the
occurrence of any event of default by Tenant, Landlord may, in
addition to any other remedies provided herein, enter upon the
Lease Premises and take possession of any and all goods, wares,
equipment, fixtures, furniture, improvements and other personal
property of Tenant situated on the Lease Premises, without
liability for trespass or conversion, and sell the same at public
or private sale, with or without having such property at the sale,
after giving tenant reasonable notice of the time and place of any
public sale or of the tine after which any private sale is to be
made, at which sale Landlord or its assigns may purchase unless
other-wise prohibited by law. Unless otherwise provided by law,
and without intending to exclude any other manner of giving Tenant
reasonable notice, the requirement of reasonable notice shall be
met if such notice is given in the manner prescribed in this tease
at least five (5) days before the time of sale. The proceeds from
any such disposition, less any and all expenses connected with the
taking of possession, holding and selling of the property
(including reasonable attorneys' fees and other expenses), shall
be applied as a credit against the indebtedness secured by the
security interest granted in this Paragraph 25. Any surplus shall
be paid to Tenant or as otherwise required by law, and Tenant
agrees to execute and deliver to Landlord a financing statement in
form sufficient to perfect the security interest of Landlord in
the aforementioned property and proceeds thereof under the
provisions of the Uniform Commercial Code in force in the State of
Texas. The Statutory lien for rent is not hereby waived, the
security interest herein granted being in addition and
supplementary thereto.
27. SUBORDINATION.
(a) Except as other-wise provided to the contrary herein,
Tenant agrees that this Lease shall at all times be subject and
subordinate to the lien of any mortgage (including any amendment
or modification thereof, whether made prior or subsequent to
request for subordination) which may be placed on the teased
Premises by Landlord, if requested in writing by the bolder or
prospective holder thereof; provided, that Tenant shall at all
times be entitled to possession tinder this Lease so long as it
complies with the terms herein set out, subject to the conditions
hereinafter expressed. Tenant agrees, upon demand and without
cost, to execute any instrument as nay be required to effectuate
such subordination which instruments shall include, among and with
any other provisions required by the Mortgagee, an agreement on
the part of Tenant to attorn to any and all successors their
interest to the Leased Premises resulting from any foreclosure of
any such mortgage or conveyance in lieu of the foreclosure. At
the-date hereof, there are no outstanding mortgages on the
Building.
(b) Anything to the contrary herein notwithstanding, Tenant
covenants and agrees that if the present or future holder of any
mortgage (including any amendment and/or modification thereof,
whether made prior or subsequent to the subordination hereinabove
provided for) affecting the Leased Premises subordinates said
mortgage to this Lease, whether the same be part of a general
subordination by such Mortgagee or specifically refers to this
Lease, then this Lease shall for all intents and purposes be
considered to be paramount and superior to said mortgage and shall
survive and continue to remain in full force and effect, even
though said mortgage be foreclosed; and, Tenant shall continue to
comply with all of its obligations hereunder, whether or not said
mortgage be foreclosed; and, in the event of any such foreclosure,
Tenant agrees to thereafter attorn to the Mortgagee, its successors
and assigns, and to any purchaser at foreclosure, its successors
and assigns.
(c) Tenant agrees that it will not (i) prepay any rents or
other charges more than thirty (30) days in advance of the due
date required by this Lease without prior written consent of said
Mortgagee: (ii) terminate this lease or exercise a right of set-
off, if any there be, except for the default of Landlord (after
giving written notice to the Mortgagee and a reasonable time for
the Mortgagee to correct such default) or (iii) amend this Lease
without the prior consent of the Mortgagee.
(d) Tenant will, upon receipt of demand therefor, at any time
or times, execute, acknowledge, and deliver to Landlord any and all
instruments and certificates that may be necessary or proper to
more effectively effectuate the provisions hereof, This lease and
all rights of Tenant hereunder are further subject and subordinate,
to the extent that the same relate to the Leased Premises, to all
applicable ordinances of the City of Irving, Texas, relating to
easements, franchises, and other interests or rights upon, across
or appurtenant to the building or any of the Land, and all utility
easements and agreements.
28. QUIET ENJOYMENT. Provided Tenant pays the rent payable
hereunder as and when due and payable and keeps and fulfills all of
the terms, covenants, agreements and conditions to be performed by
Tenant hereunder, Tenant shall at all times during the Lease Term
peaceably and quietly enjoy the Leased Premises without any
disturbances from Landlord or from any other person claiming by,
through or under Landlord, subject to the terms, provisions,
covenants, agreements and conditions of this tease and to the deeds
of trust, mortgages. ground leases, ordinances, leases, utility
easements and agreements to which this Lease is subject and
subordinate, as hereinabove set forth.
29. NOTICE TO LANDLORD In the event of any act or omission by
Landlord which would give Tenant the right to damages from Landlord
or the right to terminate this Lease by reason of a constructive or
actual eviction from all or part of the Leased Premises or
otherwise, Tenant shall not xxx (or such damages or exercise any
such right to terminate until (i) it shall have given written
notice of such act or omission to Landlord and Landlord's
mortgagee, if any, and (ii) a reasonable period of time for
remedying such act or omission shall have elapsed following the
giving of such notice, during which time Landlord, its agents,
employees or its mortgagee shall be entitled to enter upon the
Leased Premises and do therein whatever may be necessary to remedy
such act of omission. hiring the period after the giving of such
notice and during the remedying of such act or omission the rent
payable by tenant for such period as provided in this Lease shall
be abated and apportioned only to the extent that any part of the
Leased Premises shall be untenantable.
30. HOLDING OVER BY TENANT. Should Tenant or any of its
successors in interest continue to hold the Leased Premises after
the termination of this Lease, whether such termination occurs by
lapse of time or otherwise, such holding over shall constitute and
be construed as a tenancy from month to month only, at a monthly
rental equal to 150% of the monthly rent provided herein at the
time of such termination, hiring such time as Tenant shall continue
to hold the Leased Premises after the termination hereof, Tenant
shall continue to hold the Leased Premises after the termination
hereof. Tenant shall be regarded as a Tenant from month to month;
subject, however, to all of the terms, provisions covenants and
agreements on the part of Tenant hereunder. No payments of money by
Tenant to Landlord after the termination of this Lease shall
reinstate, continue, or extend the term of this Lease and no
extension of this Lease after the termination thereof shall be
valid unless and until the same shall be reduced to writing and
signed by both Landlord and Tenant.
31. RULES AND REGULATIONS Tenant and Tenant's agents,
employees, and invitees will comply with all requirements of the
Rules and Regulations (as changed from time to time as hereinafter
provided) which are attached hereto as Exhibit "B" and made a part
hereof as though fully set out herein. Landlord shall at all times
have the right to change such Rules and Regulations or to
promulgate other Rules and Regulations in such reasonable manner as
may be deemed advisable for the safety, care or cleanliness of the
Building and related facilities or premises and for preservation of
good order therein; provided, however, that such changes shall not
become effective and a part of this Lease until a copy thereof
shall have been delivered to Tenant. Tenant shall further be
responsible for the compliance with such Rules and Regulations by
the employees, servants, agents, visitors, and invitees of Tenant.
Landlord shall not be responsible to Tenant for failure of any
person to comply with such Rules and Regulations No such amendment
shall have the effect of changing any of the basic terms of this
Lease.
32. ESTOPPEL CERTIFICATE Tenant will, at any time and from
time to time, upon not less than twenty (20) days' prior request by
Landlord, execute, acknowledge and deliver to landlord a statement
in writing executed by Tenant certifying that this Lease is the
entire agreement between the parties and is unmodified and in full
effect (or, if there have been modifications, that this Lease is in
full effect as modified, and setting forth such modifications) and
the dates to which the rent has been paid, that the Tenant has
unconditionally accepted the Leased Premises, and either stating
that to the knowledge of the signer of such certificate no default
exists hereunder or specifying each such default of which the
signer may have knowledge; it being intended that any such
statement by Tenant may be relied upon by any prospective purchaser
or mortgagee of the Building.
33. PERSONAL LIABILITY. The liability of Landlord to Tenant
for any default by landlord under the terms of this Lease shall be
limited to the interest of Landlord in the Building and land and
landlord shall not be personally liable for any deficiency. This
clause shall not be deemed to limit or deny any remedies which
Tenant may have in the event of default by Landlord hereunder which
do not involve the personal liability of Landlord,
34. BROKERAGE. Each party hereto warrants that it has had no
dealings with any broker or agent in connection with the
negotiation or execution of this Lease other than Xxxxxxx &
Wakefield of Texas, Inc. and, JPI Realty, Inc. hereinafter
collectively referred to as the "Brokers". Each party hereto agrees
to indemnify the other party against all costs, expenses,
attorneys' fees or other liability for commissions or other
compensation or charges claimed by any broker or agent, other than
Brokers, claiming the same by through, or under it with respect to
the original term thereof or any renewal or extension thereof or
with respect to any expansion of the Leased Premises. The
brokerage commission payable to the Brokers, if any, shall be paid
by Landlord pursuant to the terms of a separate agreement between
landlord and the Brokers.
35. NOTICES. Each provision of this agreement, or of any
applicable governmental lawn, ordinances, regulations and other
requirements with reference to the sending, mailing or delivery of
any notice, or with reference to the making of any payment by
tenant to Landlord, shall be deemed to be complied with when and
if the following steps are taken:
(a) All rent and other payments required to be made by
tenant to Landlord hereunder shall be payable to Landlord in
Dallas County, Texas. at the address set forth on Page 1
hereof or at such other address as Landlord may specify from
time to time by written notice delivered in accordance
herewith.
(b) Any notice or document required to be delivered
hereunder shall be deemed to be delivered if actually received
and whether or not received when deposited in the United
States wail, postage prepaid certified or registered mail
(return receipt requested) addressed to the parties hereto at
their respective addresses set forth on Page 1 hereof or at
such other address as either of said parties have theretofore
specified by written notice delivered in accordance herewith.
36. SEVERABILITY. Each and every covenant and agreement
contained in this Lease is, and shall be construed to be, a
separate and independent covenant and agreement. If any term or
provision of this Lease or the application thereof to any person
or circumstances shall to any extent be invalid and unenforceable,
the remainder of this Lease, or the application of such term or
provision to persons or circumstances other than those as to which
it is invalid Or unenforceable, shall not be affected thereby.
37. NO MERGER. There shall be no merger of this Lease or of
the leasehold estate hereby created with the fee estate in the
Leased Premises or any part thereof by reason of the fact that the
same person may acquire or hold, directly or indirectly, this
Lease or the leasehold estate hereby created or any interest in
this Lease or in such leasehold estate as welt as the fee estate
in the Leased Premises or any interest in such fee estate.
38. FORCED MAJEURE. Whenever a period of time is herein
prescribed for action to be taken by Landlord or Tenant, such
party shall not be liable or responsible for, and there shall be
excluded from the computation for any such period of time, any
delays due to strike, acts of God, shortages of labor or
materials, war, governmental laws, regulations, restrictions, or
any other cause of any kind whatsoever which is beyond the
reasonable control of such party; provided, however, that the
foregoing shall not in any event excuse Tenant from the prompt
payment of rent or any other monetary obligations hereunder.
39. GENDER. Words of any Lender used in this Lease shall be
held and construed to include any other gender and words in the
singular number shall be held to include the plural, unless the
context otherwise requires.
40. JOINT SEVERAL ABILITY. If there be more than one Tenant,
the obligations hereunder imposed upon Tenant shall be joint and
several.
41. NO REPRESENTATIONS. Landlord or Landlord's agents have
made no representations or promises with respect to the Leased
Premises, the Building licenses are acquired by Tenant by
implication or otherwise except as expressly set forth in the
provisions of this Lease.
42. ENTIRE AGREEMENT This Lease sets forth the entire
agreement between the parties and no amendment or modification of
this Lease shall be binding or valid unless expressed in a writing
executed by both parties hereto.
43. PARAGRAPH HEADINGS Paragraph headings contained in this
Lease are for convenience only and shall in no way enlarge or
limit the scope or meaning of the various and several paragraphs
hereof.
44. BINDING EFFECT. All of the covenants, agreements, terms,
and conditions to be observed and performed by the parties hereto
shall be applicable to and binding upon their respective heirs,
personal representatives, successors, and to the extent assignment
is permitted hereunder, their respective assigns,
45. RIDERS AND EXHIBITS. the following numbered Riders and
lettered Exhibits are attached hereto and incorporated herein by
reference for all purposes.
Riders Xx. 0 xxx 0
Xxxxxxxx Xx. X, X. X, xxx X
46. EXECUTION OF LEASE BY LANDLORD. Except for the person
executing this lease as an officer of Landlord, employees or agents of
Landlord, or of Landlord's broker, if any, have no authority to make or
agree to make a lease or any other agreement or undertaking in
connection herewith. The submission of this document for examination
and negotiation does not constitute an offer to lease, or a reservation
of, or option for, the Leased Premises and this document becomes
effective and binding only upon the execution and delivery hereof by
Landlord and Tenant. All negotiations, considerations, representations
and understandings between Landlord and Tenant are incorporated herein
and may be modified or altered only by agreement in writing between
Landlord and Tenant, and no act or omission or any employee or agent of
Landlord or of Landlord's broker, if any, shall alter, change or modify
any of the provisions herof.
LANDLORD:
WESTERN ATLAS INTERNATIONAL, INC.
BY: /S/
------------------------------
Printed Name:
Title:
TENANT:
XXXXXXXXXX LABORATORIES, INC.
BY: /S/
------------------------------
Printed Name:
Title:
EXHIBIT "B"
To Lease By and Between
WESTERN ATLAS INTERNATIONAL, INC, as Landlord
and
XXXXXXXXXX LABORATORIES, INC., as Tenant
Building Rules and Regulations
1. No birds, animals, reptiles, or any other creatures, shall
be brought into or about the Building.
2. Nothing shall be swept or thrown into the corridors, halls,
elevator shafts or stairways.
3. Tenant shall not make or permit any improper noises in the
Building, create a nuisance, or do or permit anything which, in
Landlord's reasonable judgment, interferes in any way with other
tenants or persons having business with them.
4. No equipment of any kind shall be operated on the Leased
Premises that could in any way annoy any other tenant in the
Building without the prior written consent of Landlord.
5. Tenant shall cooperate with Building employees in keeping
the Leased Premises neat and clean
6. Corridor doors, when not in use, shall be kept closed.
7. No bicycles or similar vehicles will be allowed in the
Building.
8. Tenant will refer all contractors, contractor's
representatives, and installation technicians rendering any
service on or to the leased premises for Tenant to Landlord, for
Landlord's approval and supervision for performance of any
contractual service. This provision shall apply to all work
performed in the Building, including installation of telephones,
telegraph equipment, electrical devices, and attachments and
installations of any nature affecting floors, walls, woodwork,
trim, windows, ceiling, equipment, or any other physical portion
of the Building.
9. No nails, hooks, or screws shall be driven into or inserted
in any part of the Building except by Building maintenance
personnel.
10. Sidewalks, doorways, vestibules, halls, stairways, and
similar areas shall not be obstructed by Tenant or its officers,
agents, servants, and employees, or used for any purpose other
than ingress and egress to and from the Leased Premises, or for
going from one part of the Building to another part of the
Building. No furniture shall be placed in front of the Building,
or in any lobby or corridor without written consent of Landlord.
11. Tenant, its employees, or agents, or anyone else who
desires to enter the Building after normal working hours, will be
required to sign in upon entry and sign out upon leaving, giving
the location during their stay and their time of arrival and
departure. Normal working hours means 7:30 a.m. until 6:00 p.m.
daily and 8:0O a.m. until 1:00 p.m. on Saturdays, holidays
excepted, but the Building will be accessible by sign-in twenty-
four (24) hours per day.
12. All deliveries must he made via the service entrance and
service elevator, when provided during normal working hours or at
such times as Landlord lay determine. Prior approval must be
obtained from the Landlord for all deliveries that must be
received after normal working hours.
13. Landlord or its agents or employees shall have the right
to enter the Leased Premises to examine the same or to make such
repairs, alterations, or additions as Landlord shall deem
necessary for the safety, preservation, or improvement of the
Building.
14. Landlord has the right to evacuate the Building in the
event of an emergency or catastrophe.
15. Tenant shall not do anything, or permit anything to be
done, in or about the building, or bring to keep anything
therein, that will in any way increase the possibility of fire or
other casualty, or do anything in conflict with the valid laws,
rules, or regulations of any governmental authority.
16. Tenant shall notify the Building Manager when safes or
other equipment are to be taken into or out of the Building.
Moving of such items shall be done under the supervision of the
Building Manager, after receiving written permission from him.
17. Landlord shall have the power to prescribe the weight and
position of safes or other heavy equipment, which may overstress
any portion of the floor. All damage done to the Building by the
improper placing of heavy items which overstress the floor will
be repaired at the sole expense of the Tenant.
18. No food shall be distributed from tenant's office without
the prior written approval of the Building Manager.
19. No additional locks shall be placed upon any doors
without the prior written consent of Landlord, All necessary keys
shall be furnished by Landlord, and the same shall be surrendered
upon termination of this Lease and Tenant shall then give
Landlord or his agent an explanation of the combination of all
locks on the doors and vaults.
20. Tenant shall comply with parking rules and regulations as
may be posted and distributed from time to time.
21. Plumbing and appliances shall be used only for the
purposes for which constructed, and no sweeping, rubbish, rags,
or other unsuitable material shall be thrown or placed therein.
Any stoppage or damage resulting to any such fixtures or
appliances from misuse on the part of Tenant or Tenant's
officers, agents, servants, and employees shall be paid by
Tenant.
22. No signs, posters, advertisements, or notices shall be
painted or affixed on any of the windows or doors, or other parts
of the Building, except in such color, size, and style, and in
such places, as shall be first approved in writing by Landlord.
There shall be no obligation or duty on Landlord to give such
approval. Building standard suite identification signs will be
prepared by a sign writer, approved by Landlord. The cost of the
Building standard sign will be paid by Tenant. Landlord shall
have the right to remove all unapproved signs without notice to
Tenant, at the expense of Tenant. Directories will be placed by
Landlord at Landlord's own expense, inconspicuous places in the
Building. No other directories shall be permitted.
23. No portion of the Building shall be used for the purpose
for lodging rooms or any immoral or unlawful purposes.
24. Vending machines or dispensing machines of any kind will
not be placed in the Leased Premises by Tenant unless prior
written approval has been obtained from Landlord.
25. Prior written approval, which shall be at Landlord's sole
discretion, must be obtained for installation of any solar screen
material, window shades, blinds, drapes, awnings, window
ventilators, or other similar equipment and any window treatment
of any kind whatsoever. Landlord will control all internal
lighting that may be visible from the exterior of the Building
and shall have the right to change any unapproved lighting,
without notice to Tenant, at Tenant's expense.
26. Holidays as defined in this agreement include New Year's
flay, Memorial Day, Independence Day, Labor flay, Thanksgiving, and
Christmas.
27. Landlord reserves the right to rescind any of these rules
and make such other future rules and regulations as in the judgment
of Landlord shall from time to time be Deeded for the safety,
protection, care, and cleanliness of the Building, the operation
thereof, the preservation of good order therein, and the protection
and comfort of its tenants, their agents, employees, and invitees,
which rules when made and notice thereof given to a tenant, shall
be binding upon him in like manner as if originally herein
prescribed.
28. Tenant shall at all times keep a chair pad under every
chair, which has rollers and is located in a carpeted area.
29. Landlord will require all employees and visitors to wear
identification badges as prescribed by the Landlord at all times.
Landlord shall exercise reasonable discretion in refusing entry to
any person not wearing such identification.
RIDER NO. 1
To Lease By and Between
WESTERN ATLAS INTERNATIONAL INC., as Landlord
and
XXXXXXXXXX LABORATORIES INC., as Tenant
1. Cancellation Option. Either party hereto may cancel and
terminate this lease by giving the other party three hundred and
sixty five (365) days written notice thereof; provided, however,
that Tenant ray not cancel and terminate this Lease if Tenant is
in default hereunder either when the cancellation option is
exercised or on the date such cancellation is effective.
2. Parking. Parking facilities are available for the
Building in an uncovered parking area in close proximity to the
Building on a first-come first-served basis. So long as Tenant is
not in default under the terms of this Lease, Tenant shall have
the right to use such facilities on a first-come first-served
basis for parking by tenant and Tenant's employees, visitors and
invitees without charge. Landlord, however, reserves the right at
any time during the term of this lease to designate the area which
Tenant may use for parking of vehicles, which area shall be larger
than an area large enough to park forty-two (42) vehicles, In
addition, Landlord in any case will designate six (6) parking
spaces in reasonable proximity of the building for the exclusive
use of Tenant's executives.
RIDER NO. 2
To Lease By and Between
WESTERN ATLAS INTERNATIONAL. INC., as Landlord
and
XXXXXXXXXX LABORATORIES INC., as Tenant
Option to Extend
Tenant at its option may extend the term of this Lease for an
additional three (3) years by serving written notice thereof upon
landlord at least six (6) months before the expiration of the
initial term hereof, provided that at the time of such notice and
at the commencement of such extended term, there shall exist no
event of default as defined in this Lease. Upon the service of
said notice, this Lease shall be extended without the necessity of
the execution of any further instrument or document. Such extended
term shall commence upon the expiration date of the initial term
of this lease, expire upon the annual anniversary of said date
three (3) years thereafter, and be upon the same terms, covenants
and conditions as provided in this Lease for the initial term,
except that the Minimum Rent payable during the extended term
shall be at the prevailing rate as determined by Landlord for
comparable space in the Las Colinas Development market area, at
the commencement of such extended term,
Payment of all additional rent and other charges required to
be made by Tenant as provided in this lease for the initial term
shall continue to be made during such extended term. Any
termination of this lease during the initial term shall terminate
all rights of extension hereunder, The terms of this option are
personal to the Tenant and will not inure to the benefit of any
assignee or subtenant of Tenant.
EXHIBIT "A"
[FLOOR PLAN APPEARS HERE]
EXHIBIT "C"
To Lease By and Between
WESTERN ATLAS INTERNATIONAL, INC., as Landlord
and
XXXXXXXXXX LABORATORIES, INC, as Tenant
Being all of Las Colinas, Area IV, First Installment Revised
Plot, an addition to the City of Irving, Texas according to
the Plat thereof recorded in Volume 81119, Page 0383, of the
Deed Records of Dallas County, Texas.
EXHIBIT "D"
To Lease Agreement
By and Between
WESTERN ATLAS INTERNATIONAL, INC., as Landlord
and
XXXXXXXXXX LABORATORIES, INC., as Tenant
It is understood and agreed that:
A. PLANS AND SPECIFICATIONS. Landlord agrees to prepare the
initial plans and specifications (the "Initial Plans") for the
completion of a dividing wall in the large open area shown generally
on Schedule "1" attached hereto and made a part hereof to provide
for an office for the medical director and his secretary, which
improvements are hereinafter referred to as the "Tenant Finish", and
to submit the Initial Plans to Tenant for Tenant's approval as soon
as practical after receiving Tenant's construction requirements,
which construction requirements shall be submitted to Landlord
within ten (10) days after the date of this Lease. Tenant shall,
within fifteen (15) days after receipt of such Initial Plans from
Landlord, either approve or disapprove the sane: provided, however,
that should tenant request any changes in the Initial Plans which
vary from Tenant's original requirements, any redrawing of such
Initial Plans shall be accomplished at Tenant's sole cost and
expense. If Tenant disapproves the same, Tenant shall specify in
reasonable detail the reasons for any such disapproval. Any
redrawing of the Initial Plans or changes therein occasioned by
Tenant necessitated because of objections which are contrary to
Tenant's original requirements submitted to Landlord and/or after
Tenant's initial approval shall be accomplished at Tenant's sole
cost and expense. The cost of such redrawing shall be paid by Tenant
as additional rent hereunder within ten (10) days after tenant's
receipt of Landlord's written demand therefor. Failure of Tenant to
respond within the aforesaid fifteen (15) day period shall be deemed
to be approval of such Initial Plans. In the event the Initial Plans
have not been approved by Landlord and Tenant within sixty (60) days
from the date of this Lease, Landlord shall have the right to cancel
and terminate this Lease. The Initial Plans which are approved as
aforesaid are hereinafter referred to as the Plans'.
B. CONSTRUCTION. Landlord will construct the Tenant Finish in
the Leased Premises with reasonable diligence after the Plans are
approved pursuant to the terms of Paragraph A hereof.
C. OCCUPANCY AND RISK OF LOSS. It Is understood and agreed
that Tenant is occupying the Leased Premises under the terms of
that certain Lease dated December 4, 1987, as amended (the
"Xxxxxxxxxx Lease"), which Lease was terminated by Letter dated
January 1, l99l effective as of December 31, 1991. The Tenant
Finish which Landlord has agreed to perform hereunder will be
performed during the term of the Xxxxxxxxxx tease. Tenant agrees to
cooperate fully with Landlord in the performance of the tenant
Finish in the Leased Premises, Tenant agrees that Landlord shall
not be liable for any claims, losses or damage caused to persons or
property in the Leased Premises during the performance of the
Tenant finish unless such clams, losses or damage is caused by the
malicious, willful or grossly negligent acts of Landlord or
Landlord's employees or agents, Except for the Tenant Finish which
landlord has agreed to perform as aforesaid, Tenant has inspected
the Leased Premises and accepts the same as-is" without any
warranty whatsoever, either express or implied:
