LEASE
ARTICLE I
DEFINITIONS AND CERTAIN BASIC PROVISIONS
1.1 The following lists sets out certain defined terms and certain
financial and other information pertaining
to this lease:
(a) "Landlord": Xxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxxx, and Xxx X.
Xxxxx as trustee of the Xxx X. Xxxxx Family Trust UA Dated
February 23, 1990
(b) Landlord's address: 0000 Xxxxxxx Xxxx, Xxxxx #000,
Xxxxxx, Xxxxx 00000
(c) "Tenant": Xxxxxx Xxxxxx Corporation
(d) Tenant's address: 0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxx
00000 (prior Commencement Date) and 00000 Xxxxx Xxxxxx, Xxxxxx, Xxxxx
00000 (after the Commencement Date)
(e) "'Tenant's trade name": Xxxxxx Xxxxxx
(f) Tenant's Guarantor (if applicable, attach Guaranty as an
exhibit: None
(g) "Agent": Xxxxxxx & Xxxxxxx
(h) "Cooperating Agent": N/A
(i) "Property": Landlord's property located in the City of
Dallas, Dallas County, Texas, which property is described or shown on
Exhibit "A" attached to this lease ("Property"). With regard to Exhibit
"A", the parties agree that the exhibit is attached solely for the
purpose of locating the Property and the Demised Premises within the
Property and that no representation, warranty, or covenant is to be
implied by any other information shown on the exhibit (i.e., any
information as to building, etc. is subject to change at any time).
(j) "Demised Premises": an Office/Warehouse building ("Building")
containing approximately 74 8.82 square feet in area (measured by
calculating lengths and widths to the exterior of outside xxxxx and to
the center of interior walls), being known as 00000 Xxxxx Xxxxxx,
Xxxxxx, Xxxxx 00000 and the Property being described or shown on Exhibit
" B" attached to this lease.
(k) "Commencement Date": the earlier of (i) the date upon which Tenant
occupies any portion of the Demised Premises, or (ii) whichever of the
following alternatives may be appropriate (place an 'X' or other mark
designating a choice in the appropriate box):
____ days after the Demised Premises are deemed "ready for
occupancy' (as defined in Exhibit "D" attached to this lease), it being
Xxxxxxxx's estimate that the premises will be "ready for occupancy"
within 30) days after the date of execution of the lease.
_X_ December 1, 1994
Notwithstanding anything contained herein to the contrary, Landlord
agrees that Tenant shall have the right to use and occupy the warehouse
portion of the Demised Premises (in compliance with the terms of this
lease other than the payment of rent) after Landlord has completed the
work required of Landlord in connection with the warehouse portion (i.e.,
that being the raising of the lights); provided however that (A) the
Commencement Date shall have been deemed to have occurred on the date
specified above and (B) Landlord shall continue to perform those specific
other items of Landlord's Work which have not yet been accomplished with
the goal that such items be accomplished as soon as possible.
(1) Lease Term: Commencing on the Commencement Date and
continuing for five 5 years and No (0) months after the Commencement
Date; provided that if the Commencement Date is a date other than the
first day of a calendar month, the lease term shall be extended for said
number of years and months in addition to the remainder of the calendar
month in which the Commencement Date occurs.
(m) Minimum guaranteed rental: $* per month at the
commencement of the lease term (subject to Paragraph E of Article IV of
Exhibit "D" attached hereto.
Months 1 - 2 $00.00
Months 3 - 12 $17,160.50
Months 13 - 36 $21,840.58
Months 37 - 48 $23,400.67
Months 49 - 60 $24,960.67
(n) Percentage rental rate: N/A
(o) Common area maintenance charge: None.
(p) Prepaid rental: $21,177.34 being an estimate of the minimum
guaranteed rental, and Tenant's obligations for taxes, other real estate
charges and insurance, and (if applicable) merchants' association dues or
promotional fund for the month(s) of the lease term, such prepaid rental
being due and payable upon execution of this lease. Note: If Tenant
desires credit for prepaid rental upon execution of this lease, Tenant
should list the check number N/A drawee bank N/A date of check N/A 19__,
and amount N/A.
(q) Security deposit: $30,000.00, such security deposit
being due and payable upon execution of this lease. Note: If Tenant
desires credit for security deposit upon execution of this lease, Tenant
should list the check number N/A drawee bank N/A, date of check N/A
_________ 19__, and amount N/A.
(r) Permitted use: Office and Warehouse
1.2 The following chart is provided as an estimate of Tenant's
initial monthly payment broken down into its components. This chart,
however, does not supersede the specific provisions contained elsewhere
in this lease:
Initial Minimum Guaranteed Rental $17,160.50
(Sections 1 - 1 (m) and 4.1)
Initial Common Area Maintenance Charge
(Sections 1.1 a) and 7.4) $-0-
Initial Escrow Payment for Taxes and Other Real Estate Charges
(Article VI) $3,683.51
Initial Escrow Payment for Insurance
(Article VI) $333.33
Initial Payment for Merchant's Association Dues or
Promotional Fund (Article VIII) $ N/A
Total Initial Monthly Payment $21,177.34
ARTICLE II
GRANTING CLAUSE
2.1 Landlord leases the Demised Premises to Tenant upon the terms and
conditions set forth in this lease.
ARTICLE III
DELIVERY OF PREMISES
3.1 Except to the extent modified by Xxxxxxxx's express
assumption of construction obligations, if any, in an exhibit attached to
this Lease, the Demised Premises is being leased "AS IS", with Tenant
accepting all defects, if any; and Landlord makes no warranty of any
kind, express or implied, with respect to the Demised Premises (without
limitation, Landlord makes no warranty as to the habitability, fitness or
suitability of the Demised Premises for a particular purpose nor as to
the absence of any toxic or otherwise hazardous substances). This
section 3.1 is subject to any contrary requirements under applicable law;
however, in this regard Tenant acknowledges that it has been given the
opportunity to inspect the Demised Premises and to have qualified experts
inspect the Demised Premises prior to the execution of this lease.
3.2 If this lease is executed before the Demised Premises become
vacant, or if any present tenant or occupant of the Demised Premises
holds over and Landlord cannot acquire possession of the Demised Premises
prior to the Commencement Date of this lease, as above defined, Landlord
shall not be deemed to be in default under this lease; and in such event
Tenant agrees to accept possession of the Demised Premises at such time
as Landlord is able to tender the same. If Landlord utilizes the
provisions of this Section, Landlord will waive the payment of rent and
other charges covering any period prior to tender of possession of the
Demised Premises to Tenant.
ARTICLE IV
RENT
4.1 Intentionally deleted.
4.2 Rental shall accrue from the Commencement Date and shall be
payable to Landlord, at Landlord, s address.
4.3 Tenant shall pay to Landlord minimum guaranteed rental in
monthly installments in the amount specified in Section 1.1 (m) of this
lease. The first such monthly installment shall be due and payable on or
before the Commencement Date, and subsequent installments shall be due
and payable on or before the first day of each succeeding calendar month
during the lease term; provided that if the Commencement Date is a date
other than the first day of a calendar month, there shall be due and
payable on or before such date as minimum guaranteed rental f or the
balance of such calendar month a sum equal to that proportion of the rent
specified f or the first full calendar month as herein provided, which
the number of days from the Commencement Date to the end of the calendar
month during which the Commencement Date shall fall bears to the total
number of days in such month.
4.4 Intentionally deleted
4.5 Intentionally deleted
4.6 Intentionally deleted
4.7 It is understood that the minimum guaranteed rental is payable
on or before the first day of each calendar month (in accordance with
Section 4.2 above), without offset or deduction of any nature. In the
event any rental is not received within 10 days after its due date for
any reason whatsoever, or if any rental payment is by check which is
returned for insufficient funds, then in addition to the past due amount
Tenant shall pay to Landlord one of the following (the choice to be at
the sole option of Landlord unless one of the choices is improper under
applicable law, in which event the other alternative will automatically
be deemed to have been selected): (a) a late charge in an amount equal to
ten percent (1 0%) of the rental then due, in order to compensate
Landlord for its administrative and other overhead expenses; or (b)
interest on the rental then due at the maximum contractual rate which
could legally be charged in the event of a loan of such rental to Tenant
(but in no event to exceed 1 1/2% per month), such interest to accrue
continuously on any unpaid balance due to Landlord by Tenant during the
period commencing with the rental due date and terminating with the date
on which Tenant makes full payment of all amounts owing to Landlord at
the time of said payment. Any such late charge or interest payment shall
be payable as additional rental under this lease, and shall be payable
immediately on demand.
4.8 If Tenant fails in two consecutive Months to make rental
payments within ten days after due, Landlord, in order to reduce its
administrative costs, may require, by giving written notice to Tenant
(and in addition to any late charge or interest accruing pursuant to
Section 4.7 above, as well as any other rights and remedies accruing
pursuant to Article XXII or Article XXIII below, or any other provision
of this lease or at law), that minimum guaranteed rentals are to be paid
quarterly in advance instead of monthly and that all future rental
payments are to be made on or before the due date by cash, cashier's
check, or money order and that the delivery of Tenant's personal or
corporate check will no longer constitute a payment of rental as provided
in this lease. Any acceptance of a monthly rental payment or of a
personal or corporate check thereafter by Landlord shall not be construed
as a subsequent waiver of said rights.
ARTICLE V
Intentionally deleted
ARTICLE VI
TENANT'S RESPONSIBILITY FOR TAXES, OTHER
REAL ESTATE CHARGES AND INSURANCE EXPENSES
6.1 Tenant shall be liable for all taxes levied against personal
property and trade fixtures placed by tenant in the Demised Premises. If
any such taxes are levied against Landlord or Landlord's property and if
Landlord elects to pay the same or if the assessed value of Landlord's
property is increased by inclusion of personal property and trade
fixtures placed by Tenant in the Demised Premises and Landlord elects to
pay the taxes based on such increase, Tenant shall pay to Landlord upon
demand that part of such taxes for which Tenant is primarily liable
hereunder.
6.2 Tenant shall also be liable for 'Tenant's proportionate share'
(as defined below) of all "real estate charges' (as defined below) and
'insurance expenses' (as defined below) related to the Property or
Landlord's ownership of the Property. Tenant's obligations under this
Section 6.2 shall be prorated during any partial year (i.e., the first
year and the last year of the lease term). 'Tenant's proportionate
share' shall be a fraction the numerator of which is the total floor area
(all of which is deemed "leasable") in the Demised Premises and the
denominator of which is the total leasable floor area of all buildings in
the Property at the time when the respective charge was incurred,
excluding, however, areas for which any such real estate charges or
insurance expenses, or both, are paid by a party or parties other than
Landlord. Landlord and Tenant acknowledge that Tenant is leasing all
leasable floor area in the Property. 'Real estate charges" shall include
ad valorem taxes, general and special assessments, parking surcharges,
any tax or excise on rents, any tax or charge for governmental services
(such as street maintenance or fire protection) and any tax or charge
which replaces any of such above-described .real estate charges';
provided, however, that 'real estate charges" shall not be deemed to
include any franchise, estate, inheritance or general income tax.
"Insurance expenses' shall include all premiums and other expenses
incurred by Landlord for liability insurance and fire and extended
coverage property insurance (plus whatever endorsements or special
coverages which Landlord, in Landlord's sole discretion, may consider
appropriate).
6.3 Landlord and Tenant shall attempt to obtain separate
assessments for Tenant's obligations pursuant to Section 6.1 and, with
respect to Section 6.2, for such of the "real estate charges" as are
readily susceptible or separate assessment. To the extent of a separate
assessment, Xxxxxx agrees to pay such assessment before it becomes
delinquent and to keep the Demised Premises free from any lien or
attachment; moreover, as to all periods of time during the lease term,
this covenant of Tenant shall survive the termination of the lease. With
regard to the calendar year during which the lease term expires, Landlord
at its option either may bill Tenant when the charges become payable or
may charge the Tenant an estimate of Xxxxxx's pro rata share of whichever
charges have been being paid directly by Xxxxxx (based upon information
available for the current year plus, if current year information is not
adequate in itself, information relating to the immediately preceding
year).
6.4 At such time as Landlord has reason to believe that at some
time within the immediately succeeding twelve (12) month period Tenant
will owe Landlord any amounts pursuant to one or more of the preceding
sections of this Article VI, Landlord may direct that Tenant prepay
monthly a pro rata portion of the prospective future payment (i.e., the
prospective future payment divided by the number of months before the
prospective future payment will be due). Tenant agrees that any such
prepayment directed by Landlord shall be due and payable monthly on the
same day that minimum guaranteed rental is due.
6.5 In the event that any payment due from Tenant to Landlord is
not received within 1 0 days after its due date f or any reason
whatsoever, or if any such payment is by check which is returned f or
insufficient funds, then in addition to the amount then due Tenant shall
pay to Landlord interest on the amount then due at the maximum
contractual rate which could legally be charged in the event of a loan of
such amount to Tenant (but in no event to exceed 1 1/2% per month), such
interest to accrue continuously on any unpaid balance until paid.
ARTICLE VII
REPAIRS
7.1 Except for the repairs Landlord is specifically obligated to
make under Article 10.1 Tenant shall make all repairs and
necessary replacements to the Property and the Demised Premises and the
improvements, systems and equipment thereon which are necessary or
desirable to keep the Property and the Demised Premises and the
improvements thereon in good order and repair and in a safe, dry and
tenantable condition. Tenant shall keep the Property and the Demised
Premises in a clean and sanitary condition and free from insects, vermin
and escaping odors, and in accordance with directions, rules and
regulations of the officials of the governmental agencies at the sole
cost and expense of Tenant, and Tenant shall comply with all requirements
of law, by statute, ordinance or otherwise, affecting the Property and
the Demised Premises and all appurtenances thereto. Tenant shall use, at
Tenant's cost, a rodent, pest and vermin exterminator at such intervals
as Landlord may require and the identity of whom Landlord shall approve
from time to time. If Xxxxxx refuses or neglects to commence and to
complete repairs promptly and adequately, Landlord may, but shall not be
required to, make and complete said repairs and Tenant shall pay the cost
thereof to Landlord as additional rent upon demand. Tenant shall inform
Landlord promptly by written notice of any accident, fire or damage
occurring an or to the Demised Premises of which Tenant has knowledge.
ARTICLE VIII
Intentionally deleted
ARTICLE IX
USE AND CARE OF DEMISED PREMISES
9.1 Tenant shall commence business operations in the Demised
Promises on or immediately after the commencement. Date and shall
operate its business in an efficient, high class and reputable manner so
as to produce the maximum amount of sales from the Demised Premises.
Tenant shall not at any time leave the Demised Premises vacant, but shall
in good faith continuously throughout the term of this lease conduct and
carry on in the entire Demised Premises the type of business for which
the Demised Premises is leased.
9.2 The Demised Premises may be used only for the purpose or
purposes specified in Section 1.1 (r) above, and only under the trade
name specified in Section 1 - 1 (a) above (or, if Section 1. 1 (e) is
not filed in, any trade name approved in advance by Landlord), and for
no other purpose and under no other trade name, it being understood and
acknowledged that Xxxxxxxx has entered into this lease in large part
because it believes that such use and trade name will benefit the
Property as a whole.
9.3 Tenant shall not, without Landlord's prior written consent,
keep anything within the premises or use the premises for any purpose
which creates a risk of toxic or otherwise hazardous substances or which
increases the insurance premium cost or invalidates any insurance policy
carried on the Demised Premises or other parts of the Property. All
property kept, stored or maintained within the premises by Tenant shall
be at Tenant's sole risk.
9.4 Tenant shall not conduct within the Demised Premises any fire,
auction, bankruptcy, "going-out-of-business," "lost-our-lease" or
similar sale.
9.5 Tenant shall not permit any objectionable noises or odors to
emanate from the premises; nor place or permit any radio, television,
loudspeaker or amplifier on the roof or outside the Demised Premises or
where the same can be seen or heard from outside the building; nor place
any antenna, equipment, awning or other projection on the exterior of
the Demised Premises or where the same can be seen or heard from outside
the building; nor place any antenna, equipment, awning or other
projection on the exterior of the Demised Premises; nor take any other
action which would constitute a nuisance or would disturb or endanger
other tenants of the Property or unreasonably interfere with their use
of their respective premises; nor permit any unlawful or immoral
practice to be carried on or committed on the Demised Premises; nor do
anything which would tend to injure the reputation of the Property.
9.6 Tenant shall take good care of the Demised Premises and
keep the same free from waste at all time Tenant shall not overload the
floors in the Demised Premises, nor deface or injure the Demised
Premises. Tenant shall keep the Demised Premises and sidewalks, service-
ways and loading areas adjacent to the premises neat, clean and free from
dirt, rubbish, ice or snow at all times. Tenant shall store all trash
and garbage within the premises, or in a trash dumpster or similar
container approved by Landlord as to type, location and screening; and
Tenant shall arrange for the regular pick-up of such trash and garbage at
tenant's expense (unless Landlord finds it necessary to furnish such a
service, in which event Tenant shall be charged an equitable portion of
the total of charges to all tenants using the service). Receiving and
delivery of goods and merchandise and removal of garbage and trash shall
be made only in the manner and areas prescribed by Landlord. Tenant
shall not operate an incinerator or burn trash or garbage within the
Property.
9.7 Tenant shall include the address and identity of its business
activities in the Demised Premises in all advertisements made by Tenant
in which the address and identity of any similar local business activity
of Tenant is mentioned.
9.8 Tenant shall procure at its sole expense any permits and
licenses required for the transaction of business in the Demised Premises
and otherwise comply with all applicable laws, ordinances and
governmental regulations. In addition, if the nature of Xxxxxx's business
makes it advisable for Tenant to take any extra precautions (for example,in
the case of a business which is affected by so-called 'dram shop' laws,
Tenant's compliance with all "dram shop' educational programs and
procedures), Tenant shall take all such extra precautions. At Landlord's
request, Tenant shall deliver to Landlord copies of all such permits and
licenses and proof of Tenant's compliance with all such laws, ordinances,
governmental regulations and extra precautions.
ARTICLE X
MAINTENANCE AND REPAIR OF DEMISED PREMISES
10.1 Landlord shall keep the foundation, the exterior walls (except
plate glass; windows, doors and other exterior openings; window and door
frames, molding, closure devices, locks and hardware; special store
fronts; lighting, heating, air conditioning, plumbing and other
electrical, mechanical and electromotive installation, equipment and
fixtures; signs, placards, decorations or other advertising media of any
type; and interior painting or other treatment of exterior walls) and
roof (subject to the second sentence in Section 7.4 above) of the Demised
premises in good repair. Landlord, however, shall not be required to
make any repairs occasioned by the act or negligence of Tenant, its
agents, employees, subtenants, licensees and concessionaires (including,
but not limited to, roof leaks resulting from Tenant's installation of
air conditioning equipment or any other roof penetration or placement);
and the provisions of the previous sentence are expressly recognized to
be subject to the provisions of Article XVII and Article XVIII of this
lease. In the event that the Demised Premises should become in need of
repairs required to be made by Landlord hereunder Tenant shall give
immediate written notice thereof to Landlord and Landlord shall have a
reasonable time after receipt by Landlord of such written notice in which
to make such repairs.
10.2 Tenant shall keep the Demised Premises in good, clean and
habitable condition and shall at its sole cost and expense keep the
Demised Premises free of insects, rodents, vermin and other pests and
make all needed repairs and replacements, including replacement of
cracked or broken glass, except for repairs and replacements required to
be made by Landlord under the provisions of Section 10.1, Article XVII
and Article XVIII Without limiting the coverage of the previous
sentence, it is understood that Tenant's responsibilities therein
include the repair and replacement of all lighting, heating, air
conditioning, plumbing and other electrical, mechanical and
electromotive installation, equipment and fixtures and also include all
utility repairs in ducts, conduits, pipes and wiring, and any sewer
stoppage located in, under and above the Demised Premises, regardless of
when or how the defect or other cause for repair or replacement occurred
or became apparent. If any repairs required to be made by Tenant
hereunder are not made within ten days after written notice delivered to
Tenant by Landlord ' Landlord may at its option make such repairs
without liability to Tenant for any loss or damage which may result to
its stock or business by reason of such repairs; and Tenant shall pay to
Landlord upon demand, as additional rental hereunder, the cost of such
repairs plus interest at the maximum contractual rate which could
legally be charged in the event of a loan of such payment to Tenant (but
in no event to exceed 1 1/2% per month), such interest to accrue
continuously from the date of payment by Landlord until repayment by
Xxxxxx. At the expiration of this lease, Xxxxxx shall surrender the
Demised Premises in good condition, excepting reasonable wear and tear
and losses required to be restored by Landlord in Section 10.1, Article
XVII and Article XVIII of this lease.
ARTICLE XI
ALTERATIONS
1 1.1 Tenant shall not make any alterations, additions or
improvements to the Demised Premises without the prior written consent
of Landlord, except for the installation of unattached, movable trade
fixtures which may be installed without drilling cutting or otherwise
defacing the Demised Premises. Without limiting the generality of the
immediately preceding sentence, any installation or replacement of
Tenant's heating or air conditioning equipment must be effected strictly
in accordance with Xxxxxxxx's instructions. All alterations, additions
improvements and fixtures (including, without limitation, all floor
coverings and all heating and air conditioning equipment but excluding
Tenant's unattached, readily movable furniture and office equipment)
which may be made or installed by either party upon the Demised Premises
shall remain upon and be surrendered with the Demised Premises and
become the property of Landlord at the termination of this lease, unless
Landlord requests their removal, in which event Tenant shall remove the
same and restore the Demised Premises to its original condition at
Tenant's expense.
11.2 All construction work done by Tenant within the Demised
Premises shall be performed in a good and workmanlike manner, lien-free
and in compliance with all governmental requirements, and in such manner
as to cause a minimum of interference with other construction in
progress and with the transaction of business in the Property. Xxxxxx
agrees to indemnify Landlord and hold Landlord harmless against any
loss, liability or damage resulting from such work, and Xxxxxx shall, if
requested by Landlord, furnish a bond or other security satisfactory to
Landlord against any such loss, liability or damage.
11.3 In the event Tenant uses a general contractor to perform
construction work within the Demised Premises, Tenant shall prior to the
commencement of such work, require said general contractor to execute
and deliver to Landlord a waiver and release of any and all claims
against Landlord and liens against the Property to which such contractor
might at any time be entitled and to execute and record a Bond to Pay
Claims (the 'Bond') in accordance with Chapter 53, Subchapter 1 of the
Texas Property Code, as such may be amended, superseded or replaced from
time to time and shall deliver a copy of the recorded Bond to Landlord.
The delivery of the waiver and release of lien and the Bond within the
time period set forth above shall be a condition precedent to Xxxxxx's
ability to enter on and begin its construction work at the Demised
Premises and, if applicable, to any reimbursement from Landlord for its
construction work.
11.4 In the event that Landlord elects to remodel all or any portion
of the Property, Tenant will cooperate with such remodeling, including
Tenant's tolerating temporary inconveniences (and even the temporary
removal of Tenant's signs in order to facilitate such remodeling, as it
may relate to the exterior of the Demised Premises).
ARTICLE XI
LANDLORD'S RIGHT OF ACCESS
12.1 Landlord shall have the right to enter upon the Demised
Premises at any time during normal business hours and upon appointment
(except for an emergency where entry may be made at any time and without
appointment) for the purpose of inspecting the same, or of making
repairs to the Demised Premises, or of making repairs, alterations or
additions to adjacent premises, or of showing the Demised Premises to
prospective purchasers, tenants or lenders.
12.2 Tenant will permit Landlord to place and maintain "For Rent" or
"For Lease" signs on the Demised Premises during the last 180 days of
the lease term, it being understood that such signs shall in no way
affect Tenant's obligations pursuant to Section 9.4, Section 13.1 or any
other provision of this lease.
12.3 Use of the roof above the Demised Premises is reserved to
Landlord; however, Landlord agrees that it will not use the roof above
the Demised Premises for signage or other advertising displays.
ARTICLE XIII
SIGNS; STORE FRONTS
13.1 Tenant shall not, without Xxxxxxxx ' s prior written consent
(a) make any changes to the exterior of the building or (b) install any
exterior lighting, decorations, paintings, awnings, canopies or the like.
All signs, lettering, placards, decorations and advertising media
(including, without limitation, the sign required by Section 13.2 below)
shall be subject to Landlord's approval, not to be unreasonably withheld
or delayed and shall be subject to Landlord's requirements as to
construction, method of attachment, size, shape, height, lighting, color
and general appearance. All signs shall be kept in good condition and in
proper operating order at all times. Notwithstanding any provision to
the contrary, Landlord shall not be able to exercise any control over the
use of Xxxxxx Xxxxxx' trademark.
13.2 Subject to the restrictions of Section 13.1 above, Xxxxxx
agrees to install and maintain a first-class sign on the Demised
Premises during the term of this lease.
ARTICLE XIV
UTILITIES
14.1 Landlord agrees to cause to be provided to the Property the
necessary mains, conduits and other facilities necessary to supply water,
gas (if deemed appropriate by Landlord), electricity, telephone service
and sewerage service to the building in which the Demised Premises are
located.
14.2 Tenant shall promptly pay all charges for electricity, water,
gas, telephone service, sewerage service and other utilities furnished to
the Demised Promises. Landlord may, if it so elects, furnish one or more
utility services to Tenant, and in such event Tenant shall purchase the
use of such services as are tendered by Landlord, and shall pay on demand
as additional rental the rates established therefor by Landlord which
shall not exceed the rates which would be charged for the same services
if furnished directly by the local public utility companies. Landlord
may at any time discontinue furnishing any such service without
obligation to Tenant other than to connect the Demised Premises to the
public utility, if any, furnishing such service.
14.3 Landlord shall not be liable for any interruption whatsoever in
utility services not furnished by Landlord, nor for interruptions in
utility services furnished by Landlord which are due to fire, accident,
strike, acts of God or other causes beyond the control of Landlord or
which are necessary or useful in connection with making any alterations,
repairs or improvements.
ARTICLE XV
INSURANCE COVERAGES
15.1 Landlord shall procure and maintain throughout the term of this
lease a policy or policies of insurance, at its sole cost and expense
(but subject to Article VI above), causing the Property to be insured
under standard fire and extended coverage insurance and liability
insurance (plus whatever endorsements or special coverages Landlord, in
its sole discretion, may consider appropriate), to the extent necessary
to comply with Landlord's obligations pursuant to other provisions of
this lease.
15.2 Tenant shall procure and maintain throughout the term of this
lease a policy or policies of insurance at its sole cost and expense,
causing Xxxxxx's fixtures and contents to be insured under standard fire
and extended coverage insurance and, with regard to liability insurance,
insuring both Landlord and Tenant against all claims, demands or actions
arising out of or in connection with Xxxxxx's use or occupancy of the
Demised Premises, or by the condition of the Demised Premises. The
limits of Tenant's liability policy or policies shall be in an amount not
less than $1,000,000 per occurrence (and no offset for occurrences on
property other than the Demised Premises), and shall be written by
insurance companies satisfactory to Landlord. Tenant shall obtain a
written obligation on the part of each insurance company to notify
Landlord at least twenty days prior to cancellation of such insurance.
Such policies or duly executed certificates of insurance shall be
promptly delivered to Landlord and renewals thereof as required shall be
delivered to Landlord at least thirty days prior to the expiration of the
respective policy terms. If Tenant should fail to comply with the
foregoing requirement relating to insurance, Landlord may obtain such
insurance and Tenant shall pay to Landlord on demand as additional rental
hereunder the premium cost thereof plus interest at the maximum
contractual rate (but in no event to exceed I 1/2% per month) from the
date of payment by Landlord until repaid by Tenant.
ARTICLE XVI
WAIVER OF LIABILITY; MUTUAL WAIVER OF SUBROGATION
16.1 Landlord and Landlord's agents and employees shall not be
liable to Tenant, nor to Tenant's employees, agents or visitors, nor to
any other person whomsoever, for any injury to person or damage to
property caused by the Demised Premises or other portions of the Property
becoming out of repair or by defect or failure of any structural element
of the Demised Premises or of any equipment pipes or wiring, or broken
glass, or by the backing up of drains, or by gas, water, steam,
electricity or oil leaking, escaping or flowing into the Demised Premises
(except where due to Landlord's willful failure to make repairs required
to be made hereunder, after the expiration of a reasonable time after
written notice to Landlord of the need for such repairs), nor shall
Landlord be liable to Tenant, nor to Tenant's employees, agents or
visitors, nor to any other person whomsoever, for any loss or damage that
may be occasioned by or through the acts or omissions of other tenants of
the Property or of any other persons whomsoever, excepting only duly
authorized employees and agents of Landlord. Landlord shall not be held
responsible in any way on account of any construction, repair or
reconstruction (including widening) of any private or public roadways,
walkways or utility lines.
16.2 Landlord shall not be liable to Tenant or to Tenant's
employees, agents, or visitors, or to any other person whomsoever, for
any injury to person or damage to property on or about the Demised
Premises or the Property caused by the negligence or misconduct of
Tenant, its employees, subtenants, licensees or concessionaires, or of
any other person entering the Shopping center under express or implied
invitation of Tenant (with the exception of customers in the Property),
or arising out of the use of the Demised Premises by Xxxxxx and the
conduct of its business therein, or arising out of any breach or default
by Tenant in the performance of its obligations under this lease; and
Tenant hereby agrees to indemnify Landlord and hold Landlord harmless
from any loss, expense or claims arising out of such damage or injury.
16.3 Landlord and Tenant each hereby release the other from any
and all liability or responsibility to the other, or to any other party
claiming through or under them by way of subrogation or otherwise, for
any loss or damage to property caused by a casualty which is insurable
under standard fire and extended coverage insurance; provided, however,
that this mutual waiver shall be applicable only with respect to a loss
or damage occurring during the time when property insurance policies,
which are readily available in the marketplace, contain a clause or
permit an endorsement to the effect that any such release shall not
adversely affect or impair the policy or the right of the insured party
to receive proceeds under the policy; provided, further, that this
release shall not be applicable to the portion of any damage which is not
reimbursed by the damaged party's insurer because of the "deductible' in
the damaged party's insurance coverage. The release specified in this
Section 16.3 is cumulative with any releases or exculpations which may be
contained in other provisions of this lease.
ARTICLE XVII
DAMAGES BY CASUALTY
17.1 Tenant shall give immediate written notice to the Landlord of
any damage caused to the Demised Premises by fire or other casualty.
17.2 In the event that the Demised Premises shall be damaged or
destroyed by fire or other casualty insurable under standard fire and
extended coverage insurance and Landlord does not elect to terminate this
lease as hereinafter provided, Landlord shall proceed with reasonable
diligence and at its sole cost and expense to rebuild and repair the
Demised Premises. In the event (a) the building in which the Demised
Premises are located is destroyed or substantially damaged by a casualty
not covered by Landlord's insurance or (b) such building is destroyed or
rendered untenantable to an extent in excess of fifty percent of the
first floor area by a casualty covered by Landlord's insurance, or (c)
the holder of a mortgage, deed of trust or other lien on such building at
the time of the casualty elects, pursuant to such mortgage, deed of trust
or other lien, to require the use of all or part of Landlord's insurance
proceeds in satisfaction of all or part of the indebtedness secured by
the mortgage, deed of trust or other lien, then Landlord may elect either
to terminate this lease or to proceed to rebuild and repair the Demised
Premises; Landlord shall give written notice to Tenant of such election
within sixty days after the occurrence of such casualty and, if it elects
to rebuild and repair, shall proceed to do so with reasonable diligence
and at its sole cost and expense.
17.3 Landlord's obligation to rebuild and repair under this Article
XVII shall in any event be limited to restoring one of the following (as
may be applicable): (a) if this lease does not include an attached
exhibit describing Landlord's initial construction responsibility
('Landlord's Work'), restoring the Demised Premises to substantially the
condition in which the same existed prior to such casualty, exclusive of
any alterations, additions, improvements, fixtures and equipment
installed by Tenant; or (b) restoring Landlord's Work, as described in
the applicable exhibit attached to this lease (if such an exhibit is
attached), to substantially the same condition in which the same existed
prior to the casualty. Xxxxxx agrees that promptly after completion of
such work by Xxxxxxxx, Xxxxxx will proceed with reasonable diligence and
at Xxxxxx's sole cost and expense to restore, repair and replace all
alterations, additions, improvements, fixtures, signs and equipment
installed by Tenant, or, if an exhibit describing Xxxxxx's Work is
attached hereto, all items of Tenant's Work as described in such exhibit,
as the case may be.
17.4 Tenant agrees that during any period of reconstruction or
repair of the Demised Premises, it will continue the operation of its
business within the Demised Premises to the extent practicable. During
the period from the occurrence of the casualty until Landlord's repairs
are completed, the minimum guaranteed rental shall be reduced to such
extent as may be fair and reasonable under the circumstances; however,
there shall be no abatement of other charges provided for herein.
ARTICLE XVIII
EMINENT DOMAIN
18.1 If more than thirty percent (30%) of the floor area of the
Demised 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 by private purchase in lieu thereof, this lease shall terminate
and the rent shall be abated during the unexpired portion of this lease,
effective on the date physical possession is taken by the condemning
authority.
18.2 If less than thirty percent (30%) of the floor area of the
Demised Premises should be taken as aforesaid, this lease shall not
terminate; however, the minimum guaranteed rental but not percentage
rental) payable hereunder during the unexpired portion of this lease
shall be reduced in proportion to the area taken effective on the date
physical possession is taken by the condemning authority. Following such
partial taking, Landlord shall make all necessary repairs or alterations
to the remaining premises or, if an exhibit describing Xxxxxxxx's Work is
attached to this lease, all necessary repairs within the scope of
Landlord's Work as described in such exhibit, as the case may be,
required to make the remaining portions of the Demised Premises an
architectural whole.
18.3 If any part of the Property should be taken as aforesaid, this
lease shall not terminate, nor shall the rent payable hereunder be
reduced, except that either Landlord or Tenant may terminate this lease
if the area of the Property remaining following such taking plus any
additional parking area provided by Landlord in reasonable proximity to
the Property shall be less than seventy percent of the area of the
Property immediately prior to the taking. Any election to terminate this
lease in accordance with this provision shall be evidenced by written
notice of termination delivered to the other party within thirty days
after date physical possession is taken by condemning authority.
18.4 All compensation awarded for any taking (or the proceeds of
private sale in lieu thereof) of the Demised Premises or Property shall
be the property of Landlord, and Tenant hereby assigns its interest in
any such award to Landlord; provided, however, Landlord shall have no
interest in any award made to Tenant for Tenant's moving and relocation
expenses or for the loss of Tenant's fixtures and other tangible personal
property if a separate award for such items is made to Tenant as long as
such separate, award does not reduce the amount of the award that would
otherwise be awarded to Landlord.
ARTICLE XIX
ASSIGNMENT AND SUBLETTING
19.1 Tenant shall not assign or in any manner transfer this lease or
any estate or interest therein, or sublet the Demised Premises or any
part thereof, or grant any license, concession or other right of
occupancy of any portion of the Demised Premises without the prior
written consent of Landlord. Xxxxxxxx agrees that it will not withhold
consent in a wholly unreasonable and arbitrary manner (as further
explained in Section 28.4 of this lease); however, in determining
whether or not to grant its consent, Landlord shall be entitled to take
into consideration factors such as the reputation and net worth of the
proposed transferee, and the then current market conditions (including
market rentals). In addition, Landlord shall also be entitled to charge
Tenant a reasonable fee for processing Xxxxxx's request. 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.
19.2 If Tenant is a corporation, partnership or other entity and if
at any time during the term of this lease the person or persons who own
a majority of either the outstanding voting rights or the outstanding
ownership interests of Tenant at the time of the execution of this lease
cease to own a majority of such voting rights or ownership interests
(except as a result of transfers by devise or descent), the loss of a
majority of such voting rights or ownership interests shall be deemed an
assignment of this lease by Tenant and, therefore, subject in all
respects to the provisions of Section 1 9.1 above. The previous
sentence shall not apply, however, if at the time of the execution of
this lease, Tenant is a corporation and the outstanding voting shares of
capital stock of Tenant are listed on a recognized security exchange or
over-the-counter market.
19.3 Any assignee or sublessee of an interest in and to this lease
shall be deemed, by acceptance of such assignment or sublease or by
taking actual or constructive possession of the Demised Premises, to
have assumed all of the obligations set forth in or arising under this
lease. Such assumption shall be effective as of the earlier of the date
of such assignment or sublease or the date on which the assignee or
sublessee obtains possession of the Demised Premises.
19.4 Notwithstanding any assignment or subletting, Tenant and any
guarantor of Tenant's obligations under this lease shall at all times
remain fully responsible and liable for the payment of the rent herein
specified and for compliance with all of its other obligations under this
lease (even if future assignments and sublettings occur subsequent to the
assignment or subletting by Xxxxxx, and regardless of whether or not
Tenant's approval has been obtained for such future assignments and
sublettings). Moreover, in the event that the rental due and payable by
a sublessee (or a combination of the rental payable under such sublease
plus any bonus or other consideration therefor or incident thereto)
exceeds the rental payable under this lease, or if with respect to a
permitted assignment, permitted license or other transfer by Tenant
permitted by Landlord, the consideration payable to Tenant by the
assignee, licensee or other transferee exceeds the rental payable under
this lease, then Tenant shall be bound and obligated to pay Landlord all
such excess rental and other excess consideration within ten (10) days
following receipt thereof by Tenant from such sublessee, assignee,
licensee or other transferee, as the case may be. Finally, in the event
of an assignment or subletting, it is understood and agreed that ail
rentals paid to Tenant by an assignee or sublessee shall be received by
Tenant in trust for Landlord, to be forwarded immediately to Landlord
without offset or reduction of any kind; and upon election by Landlord
such rentals shall be paid directly to Landlord as specified in Section
4.2 of this lease (to be applied as a credit and offset to Tenant's
rental obligation).
19.5 Tenant shall not mortgage, pledge or otherwise encumber its
interest in this lease or in the Demised Premises.
19.6 In the event of the transfer and assignment by Landlord of its
interest in this lease and in the building containing the Demised
Premises to a person expressly assuming Landlord's obligations under this
lease, Landlord shall thereby be released from any further obligations
hereunder, and Xxxxxx agrees to look solely to such successor in interest
of the Landlord for performance of such obligations. Any security given
by Xxxxxx to secure performance of Xxxxxx's obligations hereunder may be
assigned and transferred by Landlord to such successor in interest and
Landlord shall thereby be discharged of any further obligation relating
thereto.
ARTICLE XX
SUBORDINATION; ATTORNMENT; ESTOPPELS
20.1 Tenant accepts this lease subject and subordinate to any
mortgage, deed of trust or other lien presently existing or hereafter
placed upon the Property or any portion of the Property which includes
the Demised Premises, and to any renewals and extensions thereof.
Xxxxxx agrees that any mortgagee shall have the right at any time to
subordinate its mortgage, deed of trust or other lien to this lease;
provided, however, notwithstanding that this lease may be (or made to
be) superior to a mortgage, deed of trust or other lien, the mortgagee
shall not be liable for prepaid rentals, security deposits and claims
accruing during Landlord's ownership; further provided that the
provisions of a mortgage, deed of trust or other lien relative to the
rights of the mortgagee with respect to proceeds arising from an eminent
domain taking (including a voluntary conveyance by Xxxxxxxx) and
provisions relative to proceeds arising from insurance payable by reason
of damage to or destruction of the Demised Premises shall be prior and
superior to any contrary provisions contained in this instrument with
respect to the payment or usage thereof. Landlord is hereby irrevocably
vested with full power and authority to subordinate this lease to any
mortgage, deed of trust or other lien hereafter placed upon the Demised
Premises or the Property as a whole, and Xxxxxx agrees upon demand to
execute such further instruments subordinating this lease as Landlord
may request; provided, however, that upon Xxxxxx's written request and
notice to Landlord, Landlord shall use good faith efforts to obtain from
any such mortgagee a written agreement that after a foreclosure (or a
deed in lieu of foreclosure) in the rights of Tenant shall remain in
full force and effect during the term of this lease so long as Tenant
shall continue to recognize and perform all of the covenants and
conditions of this lease.
20.2 At any time when the holder of an outstanding mortgage,
deed of trust or other lien covering Landlord's interest in the Demised
Premises has given Tenant written notice of its interest in this lease,
Tenant may not exercise any remedies for default by Landlord hereunder
unless and until the holder of the indebtedness secured by such
mortgage, deed of trust or other lien shall have received written
notice of such default and a reasonable time (not less than 30 days)
shall thereafter have elapsed without the default having been cured.
20.3 Tenant agrees that it will from time to time upon request
by Landlord execute and deliver to Landlord a written statement
addressed to Landlord (or to a party designated by Landlord), which
statement shall identify Tenant and this lease, shall certify that this
lease is unmodified and in full force and effect (or if there have been
modifications, that the same is in full force and effect as so
modified), shall confirm that Landlord is not in default as to any
obligations of Landlord under this lease (or if Landlord is in default,
specifying any default), shall confirm Tenant's agreements contained
above in this Article XX, and shall contain such other information or
confirmations as Landlord may reasonably require. Xxxxxxxx is hereby
irrevocably appointed and authorized as the agent and attorney-in-fact
of Tenant to execute and deliver any such written statement on Xxxxxx's
behalf if Xxxxxx fails to do so within seven (7) days after the
delivery of a written request from Landlord to Tenant.
ARTICLE XXI
DIRECTION OF TENANT'S ENERGIES
Intentionally Deleted
ARTICLE XXII
DEFAULT BY TENANT AND REMEDIES
22.1 The following events shall be deemed to be events of default by
Tenant under this lease:
(a) Tenant shall fail to pay any installment or rental or any
other obligation under this lease involving the payment of money and
such failure shall continue for a period of ten (10) days after
written notice thereof to Tenant; provided, however, that for each
calendar year during which Landlord has already given Tenant one
written notice of the failure to pay an installment of rental, no
further notice shall be required (i.e., the event of default will
automatically occur on the tenth day after the date upon which the
rental was due).
(b) Tenant shall fail to comply with any provision of
this lease, other than as described in subsection (a) above, and either
shall not cure such failure within fifteen (15) days after written notice
thereof to Tenant, or shall cure that particular failure but shall again
fail to comply with the same provision of the lease within three months
after Landlord's written notice.
(c) Tenant or any guarantor of Tenant's obligations under this
lease shall become insolvent, or shall make a transfer in fraud of
creditors, or shall make an assignment for the benefit of creditors.
(d) Tenant or any guarantor of Tenant's obligations under this
lease shall file a petition under any section or chapter of the
federal Bankruptcy Code, as amended, or under any similar law or
statute of the United States or any state thereof; or Tenant or any
guarantor of Tenant's obligations under this lease shall be adjudged
bankrupt or insolvent in proceedings filed against Tenant or any
guarantor of Tenant's obligations under this lease thereunder.
(e) A receiver or Trustee shall be appointed for the Demised Premises
or for all or substantially all of the assets of Tenant or any guarantor
of Tenant's obligation under this lease.
(f)Tenant shall desert or vacate or shall commence to desert or
vacate the Demised Premises or any substantial portion of
the Demised Premises or at any time prior to the last month
of the lease term shall remove or attempt to remove,
without the prior written consent of Landlord, all or a
substantial amount of Tenant's goods, wares, equipment,
fixtures, furniture, or other personal property.
(g) Tenant shall do or permit to be done anything which
creates a lien upon the Demised Premises or upon all or any part of
the Property.
22.2 Upon the occurrence of any such events of default, Landlord
shall have the option to pursue any one or more of the following
remedies:
(a) Without any further notice or demand whatsoever, Tenant
shall be obligated to reimburse Landlord for the damages suffered by
Landlord as a result of the event of default, plus interest on such
amount at the maximum contractual rate which could legally be charged
in the event of a loan of such amount to Tenant (but in no event to
exceed 1-1/2% per month); and Landlord may pursue a monetary recovery
from Tenant. In this regard, and without limiting the generality of
the immediately preceding sentence, it is agreed that if Tenant fails
to occupy the Demised Premises as required in this lease or, having
occupied same for business, subsequently deserts or vacates the
Demised Premises or otherwise ceases to conduct business in the
Demised Premises as required in this lease, then Landlord at its
option may seek monetary recovery for the loss of Tenant's
anticipated contribution to commerce within the Property; moreover,
Landlord and Tenant further agree that inasmuch as the exact amount
of damages would be difficult to determine, liquidated damages will
be due monthly in an amount equal to twenty-five percent of the
monthly guaranteed rental payable for the month if Tenant fails to
open for business as required in this lease or, having opened for
business, subsequently deserts or vacates the Demised Premises or
otherwise ceases to conduct business in the Demised Premises as
required by this lease (including, but not limited to, failing to
comply with the requirements of Section 9.1 of this lease).
(b) Without any further notice or demand whatsoever,
Landlord may take any one or more of the actions permissible at law
to insure performance by Tenant of Tenant's covenants and
obligations under this lease. In this regard, and without limiting
the generality of the immediately preceding sentence, it is agreed
that if Tenant fails to open for business as required in this lease
or, having opened for business, deserts or vacates the Demised
Premises, Landlord may enter upon and take possession of such
premises in order to protect them from deterioration and continue to
demand from Tenant the monthly rentals and other charges provided in
this lease, without any obligation to relet with the provision that
Landlord shall use good faith efforts; however, if Landlord does,
elect to relet the Demised Premises, such action by Landlord shall
not be deemed as an acceptance of Xxxxxx's surrender of the Demised
Premises unless Landlord expressly notifies Tenant of such
acceptance in writing pursuant to this subsection (b), Tenant hereby
acknowledging that Landlord shall otherwise be reletting as Tenant's
agent and Tenant furthermore hereby agreeing to pay to Landlord on
demand any deficiency that may arise between the monthly rentals and
other charges provided in this lease and that actually collected by
Landlord. It is further agreed in this regard that in the event of
any default described in subsection (b) of Section 22.1 of this
lease, Landlord shall have the right to enter upon the Demised
Premises by force if necessary without being liable for prosecution
or any claim for damages therefore, and do whatever Tenant is
obligated to do under the terms of this lease; and Xxxxxx agrees to
reimburse Landlord on demand for any expenses which Landlord may
incur in thus effecting compliance with Tenant's obligations under
this lease, and Xxxxxx further agrees that Landlord shall not be
liable for any damages resulting to the Tenant from such action.
Finally it is agreed that in the event of any default described in
subsection (g) of Section 22.1 of this lease, Landlord may pay or
bond around such lien whether or not contested by Tenant; and in
such event Xxxxxx agrees to reimburse Landlord on demand for all
costs and expenses incurred in connection with any such action, with
Xxxxxx further agreeing that Landlord shall in no event be liable
for any damages or claims resulting from such action.
(c) Landlord may terminate this lease by written notice to
Tenant, in which event Tenant shall immediately surrender the
Demised Premises to Landlord, and if Tenant fails to do so, Landlord
may, without prejudice to any other remedy which Landlord may have
for possession or arrearages in rent (including any late charge or
interest which may have accrued pursuant to Section 4.7 of this
lease), enter upon and take possession of the Demised 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
being liable for prosecution or any claim for damages therefor. In
addition, Xxxxxx agrees to pay to Landlord on demand the amount of
all loss and damage which Landlord may suffer by reason of any
termination effected pursuant to this subsection (cl, said loss and
damage to be determined by either of the following alternative
measures of damages:
(i) Until Landlord is able, through reasonable efforts,
the nature of which efforts shall be at the sole discretion of
Landlord, to relet the Demised premises under terms satisfactory
to Landlord, in its sole discretion, Tenant shall pay to Landlord
on or before the first day of each calendar month, the monthly
rentals and other charges provided in this lease. If and after
the Demised Premises have been relet by Landlord, Tenant shall
pay to Landlord on the 20th day of each calendar month the
difference between the monthly rentals and other charges provided
in this lease for such calendar month and that actually collected
by Landlord for such month. If it is necessary for Landlord to
bring suit in order to collect any deficiency, Landlord shall
have a right to allow such deficiencies to accumulate and to
bring an action on several or all of the accrued deficiencies at
one time. Any such suit shall not prejudice in any way the right
of Landlord to bring a similar action for any subsequent
deficiency or deficiencies. Any amount collected by Landlord
from subsequent tenants for any calendar month in excess of the
monthly rentals and other charges provided in this lease, shall
be credited to Tenant in reduction of Tenant's liability for any
calendar month for which the amount collected by Landlord will be
less than the monthly rentals and other charges provided in this
lease; but Tenant shall have no right to such excess other than
the above-described credit.
(ii) When Landlord desires, Landlord may demand a final
settlement. Upon demand for a final settlement, Landlord shall
have a right to, and Xxxxxx hereby agrees to pay, the difference
between the total of all monthly rentals and other charges
provided in this lease for the remainder of the term and the
reasonable rental value of the Demised Premises for such period,
such difference to be discounted to present value at a rate equal
to the rate of interest which is allowed by law in the State of
Texas when the parties to a contract have not agreed on any
particular rate of interest (or, in the absence of such law, at
the rate of six percent per annum).
If Landlord elects to exercise the remedy prescribed in subsection
22.2(b) above, this election shall in no way prejudice Landlord's right
at any time thereafter to cancel said election in favor of the remedy
prescribed in subsection 22.2(c) above, provided that at the time of such
cancellation Tenant is still in default. Similarly, if Landlord elects
to compute damages in the manner prescribed by subsection 22.2(c)(i)
above, this election shall in no way prejudice Landlord's right at any
time thereafter to demand a final settlement in accordance with
subsection 22.2(c)(ii) above. Pursuit of any of the above remedies shall
not preclude pursuit of any other remedies prescribed in other sections
of this lease and any other remedies provided by law. Forbearance by
Landlord to enforce one or more of the remedies herein provided upon an
event of default shall not be deemed or construed to constitute a waiver
of such default.
22.3 It is expressly agreed that in determining 'the monthly rentals
and other charges provided in this lease,' as that term is used
throughout subsections 22.2(c)(i) and 22.2(c)(ii) above, there shall be
added to the minimum guaranteed rental (as specified in Sections 1.1 (m)
and 4.1 of this lease) a sum equal to the charges for maintenance of the
Property (as specified in Sections 1. 1 (o) and 7.4 of this lease), and
the payments for taxes, charges and insurance (as specified in Article VI
of this lease).
22.4 It is further agreed that, in addition to payments required
pursuant to subsections 22-2(b) and 22.2(c) above, Tenant shall
compensate Landlord for all expenses incurred by Landlord in repossession
(including, among other expenses, any increase in insurance premiums
caused by the vacancy of the Demised Premises), all expenses incurred by
Landlord in reletting (including, among other expenses, repairs,
remodeling, replacements, advertisements and brokerage fees), all
concessions granted to a new tenant upon reletting (including, among
other concessions, renewal options) all losses incurred by Landlord as a
direct or indirect result of Tenant's default (including, among other
losses, any adverse reaction by Xxxxxxxx's mortgagee or by other tenants
or potential tenants of the Property) and a reasonable allowance for
Landlord's administrative efforts, salaries and overhead attributable
directly or indirectly to Xxxxxx's default and Landlord's pursuing the
rights and remedies provided herein and under applicable law.
22.5 Landlord may restrain or enjoin any breach of threatened breach
of any covenant, duty or obligation of Tenant herein contained. The
remedies of Landlord hereunder shall be deemed cumulative and not
exclusive of each other.
22.6 If on account of any breach or default by Xxxxxx in its
obligations hereunder, Landlord shall employ an attorney to present,
enforce or defend any of Landlord's rights or remedies hereunder, Xxxxxx
agrees to pay any reasonable attorney's fees incurred by Landlord in such
connection.
22.7 In the event that any one or more provisions of this Article
XXII authorizes Landlord to enter the Demised Premises, Landlord is
entitled and is hereby authorized, without any notice to Tenant, to enter
upon the Demised Premises by use of a duplicate key, a master key, a
locksmith's entry procedures or any other means not involving personal
confrontation, and to alter or change the door locks on all entry doors
of the Demised Premises, thereby permanently excluding Tenant. In such
event Landlord, if required by statute, shall place a written notice on
the Demised Premises explaining Landlord's action; moreover, it a reason
for Landlord's action is the failure of Tenant to pay any one or more
rentals when due pursuant to this lease, Landlord shall not be required
to provide the new key (if any) to Tenant until and unless all rental
defaults of Tenant have been fully cured.
22.8 Tenant acknowledges its obligation to deposit with Landlord the
sum stated in Section 1. I (q) above, to be held by Landlord without
interest as security for the performance by Tenant of Tenant's covenants
and obligations under this lease. Tenant agrees that such deposit may be
co-mingled with Landlord's other funds and is not an advance payment of
rental or a measure of Landlord's damages in case of default by Tenant.
Upon the occurrence of any event of default by Tenant, Landlord may, from
time to time, without prejudice to any other remedy provided herein or
provided by law, use such fund to the extent necessary to make good any
arrears of rentals and any other damage, injury, expense or liability
caused to Landlord by such event of default, and Tenant shall pay to
Landlord on demand the amount so applied in order to restore the security
deposit to its original amount. If Tenant is not then in default, and
Tenant shall pay to Landlord on demand the amount so applied in order to
restore the security deposit to its original amount. If Tenant is not
then in default hereunder, any remaining balance of such deposit shall be
returned by Landlord to Tenant upon termination of this lease (subject to
the provisions of Section 19.5 above).
22.9 In the event of any default described in subsection (d) of
Section 22.1 of this lease, any assumption and assignment must conform
with the requirements of the Bankruptcy Code which provides, in part,
that the Landlord must be provided with adequate assurances (i) of the
source of rent and other consideration due under this lease, (ill that
the financial condition and operating performance of any proposed
assignee and its guarantors, if any, shall be similar to the financial
condition and operating performance of Tenant and its guarantors, if
any, as of the date of execution of this lease; (ill) that any
percentage rent due under this lease will not decline substantially;
(iv) that any assumption or assignment is subject to all of the
provisions of this lease (including, but not limited to, restrictions as
to use) and will not breach any such provision contained in any other
lease, financing agreement or other agreement relating to the Property;
and (v) that any assumption or assignment will not disrupt any tenant
mix or balance in the Property.
(a) In order to provide Landlord with the assurances
contemplated by the Bankruptcy Code, Tenant must fulfill the following
obligations, in addition to any other reasonable obligations that
Landlord may require, before any assumption of this lease is effective:
(i) all defaults under subsection (a) of Section 22.1 of this lease must
be cured within ten (1 0) days after the date of assumption; (ill all
other defaults under Section 22.1 of this lease other than under
subsection (d) of Section 22.1 must be cured within fifteen (151 days
after the date of assumption; (ill) all actual monetary losses incurred
by Landlord (including, but not limited to, reasonable attorneys fees)
must be paid to Landlord within ten (1 0) days after the date of
assumption; and (iv) Landlord must receive within ten (10) days after the
date of assumption a security deposit in the amount of six (6) months
minimum guaranteed rent (using the minimum guaranteed rent in effect for
the first full month immediately following the assumption) and an advance
prepayment of minimum guaranteed rent in the amount of three (3) months
minimum guaranteed rent (using the minimum guaranteed rent in effect for
the first full month immediately following the assumption), both sums to
be held by Landlord in accordance with Section 22.8 above and deemed to
be rent under this lease for the purposes of the Bankruptcy Code as
amended from time to time in effect.
(b) In the event this lease is assumed in accordance with the
requirements of the Bankruptcy Code and this lease, and is subsequently
assigned, then, in addition to any other reasonable obligations that
Landlord may require and in order to provide Landlord with the assurances
contemplated by the Bankruptcy Code, Landlord shall be provided with (i)
a financial statement of the proposed assignee prepared in accordance
with generally accepted accounting principles consistently applied,
though on a cash basis, which reveals a net worth in an amount
sufficient, in Landlord's reasonable judgment, to assure the future
performance by the proposed assignee of Tenant's obligations under this
lease; or (ii) a written guaranty by one or more guarantors with
financial ability sufficient to assure the future performance of Xxxxxx's
obligations under this lease, such guaranty to be in form and content
satisfactory to Landlord and to cover the performance of ail of Tenant's
obligations under this lease.
ARTICLE XXIII
LANDLORD'S CONTRACTUAL SECURITY INTEREST
23.1 In addition to the statutory Landlord's lien, Landlord shall
have at all times a valid security interest to secure payment of all
rentals and other sums of money becoming due hereunder from Tenant, and
to secure payment of any damages or loss which Landlord may suffer by
reason of the breach by Tenant of any covenant, agreement or condition
contained herein, upon all goods, wares, equipment, fixtures, furniture,
improvements and other personal property of Tenant presently, or which
may hereafter be, situated on the Demised Premises, and all proceeds
therefrom, and such property shall not be removed without the consent of
Landlord until all arrearages in rent as well as any and all other sums
of money then due to Landlord or to become 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. Upon the occurrence of an event of default by
Tenant, Landlord may, in addition to any other remedies provided
herein, enter upon the Demised Premises and take possession of any and
all goods, wares, equipment, fixtures furniture, improvements and other
personal property of Tenant situated on the Demised Premises, without
liability for trespass or conversion, and sell the same at public or
private sale, with or without having such property at the sale, after
giving Tenant reasonable notice of the time and place of any public sale
or of the time after which any private sale is to be made, at which sale
the Landlord or its assigns may purchase unless otherwise prohibited by
law. Unless otherwise provided by law, and without intending to exclude
any other manner of giving Tenant reasonable notice, the requirement of
reasonable notice shall be met if such notice is given in the manner
prescribed in this lease at least five days before the time of sale. Any
sale made pursuant to the provisions of this paragraph shall be deemed to
have been a public sale conducted in a commercially reasonable manner if
held in the above-described Demises Premises or where the property is
located after the time, place and method of sale and general description
of the types of property to be sold have been advertised in a daily
newspaper published in the county in which the property is located, for
five consecutive days before the date of the 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
attorney's fees and legal expenses), shall be applied as a credit against
the indebtedness secured by the security interest granted in this
paragraph. Any surplus shall be paid to Tenant or as otherwise required
by law; the Tenant shall pay any deficiencies forthwith. Tenant hereby
agrees that a carbon, photographic or other reproduction of this lease
shall be sufficient to constitute a financing statement. Xxxxxx
nevertheless agrees that upon request by Xxxxxxxx, Xxxxxx agrees that it
will 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 provision of the
Uniform Commercial Code (or corresponding state statute or statutes) in
force in the state in which the property is located, as well as any other
state the laws of which Landlord may at any time consider to be
applicable; moreover, Landlord is hereby irrevocably vested with a power
of attorney from Tenant to execute any and all such financing statements
on behalf of Xxxxxx.
23.2 Notwithstanding Section 23.1, Xxxxxxxx agrees that it will
subordinate its security interest and Xxxxxxxx's lion to the security
interest of Xxxxxx's supplier or institutional financial source;
provided that the subordination must be limited to a specified
transaction and specified items of the fixtures, equipment or inventory
involved in the transaction. Upon execution of this lease, Xxxxxxxx
shall execute the Subordination Agreement attached hereto as Exhibit E.
ARTICLE XXIV
HOLDING OVER
24.1 In the event Tenant remains in possession of the Demised
Premises after the expiration of this lease and without the execution of
a new lease, it shall be deemed to be occupying said premises as a
tenant from month to month at a rental equal to the rental (including
any percentage rental) herein provided plus fifty percent of such amount
otherwise subject to all the conditions, provisions and obligations of
this lease insofar as the same are applicable to a month-to-month
tenancy.
ARTICLE XXV
NOTICES
25.1 Wherever any notice is required or permitted hereunder, such
notice shall be in writing. Any notice or document required or
permitted to be delivered hereunder shall be deemed to be delivered when
actually received by the designated addressee or, if earlier and
regardless of whether actually received or not, when deposited in the
United States mail, postage prepaid, certified mail, return receipt
requested, addressed to the parties hereto at the respective addresses
set out in Section 1. 1 above (or at Landlord's option, to Tenant at the
Demised Premises), or at such other addresses as they have theretofore
specified by written notice.
25.2 If and when included within the term 'Landlord' as used in this
instrument there are more than one person, firm or corporation, all
shall jointly arrange among themselves for their joint execution of such
notice specifying some individual at some specific address for the
receipt of notices and payments to the Landlord; if and when included
within the term 'Tenant' as used in this instrument there are more than
one person, firm or corporation, all shall jointly arrange among
themselves for their joint execution of such a notice specifying some
individual at some specific address for the receipt of notices and
payment to Tenant. Ail parties included within the terms "Landlord" and
'Tenant,' respectively, shall be bound by notices and payments given in
accordance with the provisions of this Article to the same effect as if
each had received such notice or payment. In addition Xxxxxx agrees
that notices to Tenant may be given by Xxxxxxxx's attorney, property
manager or other agent.
ARTICLE XXVI
COMMISSIONS; ADVICE FROM AGENT
26.1 Landlord shall pay to Xxxxxxx & Xxxxxxx - (*Agent), a
commission as set out in a separate letter agreement dated August24,
1994, it being agreed that such agent's right to such a commission
irrevocably vests upon the execution of this lease, notwithstanding
subsequent default by Landlord or Tenant or any amendment, modification
or termination of this lease. Landlord shall pay agent one-half of such
commission upon full execution of the lease and one-half upon the
commencement date of the lease.
26.2 Intentionally deleted.
26.3 Intentionally deleted.
26.4 Intentionally deleted.
26.5 Tenant hereby acknowledges that at the time of the execution of
this lease, Agent advised Tenant by this writing that Tenant should have
an abstract covering the real estate upon which the Property and the
Demised Premises are located examined by an attorney of Xxxxxx's own
selection or, at Tenant's option, that Xxxxxx should obtain a leasehold
owner's policy of title insurance.
26.6 Xxxxxx also acknowledges that Agent has advised Tenant
that because Agent has no expertise with respect to toxic or otherwise
hazardous substances, Tenant should, prior to executing this lease, have
qualified experts conduct proper inspections of the Demised Premises in
order to determine whether or not toxic or otherwise hazardous substances
exist in, under or around the Demised Premises.
ARTICLE XVII
REGULATIONS
27.1 Landlord and Tenant acknowledge that there are in effect
federal, state, county and municipal laws, orders, rules, directives and
regulations (collectively referred to hereinafter as the 'Regulations')
and that additional Regulations may hereafter be enacted or go into
effect, relating to or affecting the Demised Premises or the Property,
and concerning the impact on the environment of construction, land use,
maintenance and operation of structures, toxic or otherwise hazardous
substances, and conduct of business. Subject to the express rights
granted to Tenant under the terms of this lease, Tenant will not cause,
or permit to be caused, any act or practice by negligence, omission or
otherwise, that would adversely affect the environment, or do anything or
permit anything to be done that would violate any of said laws,
regulations or guidelines. Moreover, Tenant shall have no claim against
Landlord by reason of any changes Landlord may make in the Property or
the Demised Premises pursuant to said Regulations or any changes imposed
upon Tenant, Xxxxxx's customers or other invitees pursuant to same.
27.2 If, by reason of any Regulations, the payment to, or collection
by, Landlord of any rental or other charge (collectively referred to
hereinafter as "Lease Payments') payable by Tenant to Landlord pursuant
to the provisions of this lease is in excess of the amount (the 'Maximum
Charge') permitted thereof by the Regulations, then Tenant, during the
period (the 'Freeze Period') when the Regulations shall be in force and
effect shall not be required to pay, nor shall Landlord be permitted to
collect, any sum in excess of the Maximum Charge. Upon the earlier (i)
the expiration of the Freeze Period, or (ii) the issuance of a final
order or judgment of a court of competent jurisdiction declaring the
Regulations to be invalid or not applicable to the provisions of this
lease, Tenant, to the extent not then proscribed by law, and commencing
with the first day of the month immediately following, shall pay to
Landlord as additional rental, in equal monthly installments during the
balance of the term of this lease, a sum equal to the cumulative
difference between the Maximum Charges and the Lease Payments during the
Freeze Period. If any provisions of this section, or the application
thereof, shall to any extent be declared to be invalid and unenforceable,
the same shall not be deemed to affect any of the other provisions of
this section or of this lease, all of which shall be deemed valid and
enforceable to the fullest extent permitted by law.
ARTICLE XVIII
MISCELLANEOUS
28.1 Nothing in this lease shall be deemed or construed by the
parties hereto, nor by any third party, as creating the relationship of
principal and agent or of partnership or of joint venture between the
parties hereto, it being understood and agreed that neither the method of
computation of rent, nor any other provision contained herein, nor any
acts of the parties hereto, shall be deemed to create any relationship
between the parties hereto other than the relationship of Landlord and
tenant.
28.2 Tenant shall not for any reason withhold or reduce Tenant's
required payments of rentals and other charges provided in this lease, it
being agreed that the obligations of Landlord under this lease are
independent of Tenant's obligations except as may be otherwise expressly
provided. The immediately preceding sentence shall not be deemed to deny
Tenant the ability of pursuing all rights granted it under this lease or
at law; however, at the direction of Landlord, Xxxxxx's claims in this
regard shall be litigated in proceedings different from any litigation
involving rental claims or other claims by Landlord against Tenant (i.e.,
each party may proceed to a separate judgment without consideration,
counterclaim or offset as to the claims asserted by the other party).
28.3 The liability of Landlord to Tenant for any default by Landlord
under the terms of this lease shall be limited to the proceeds of sale on
execution of the interest of Landlord in the Demised Premises; and
Landlord shall not be personally liable for any deficiency, except that
Landlord shall, subject to the provisions of Section 19.5 hereof, remain
personally liable to account to Tenant for any security deposit under
this lease. 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.
28.4 In all circumstances under this lease where the prior consent
of one party (the 'consenting party'), whether it be Landlord or Tenant,
is required before the other party (the 'requesting party) is authorized
to take any particular type of action, such consent shall not be withheld
in a wholly unreasonable and arbitrary manner; however, the requesting
party agrees that its exclusive remedy if it believes that consent has
been withheld improperly (including, but not limited to, consent required
from Landlord pursuant to Section 9.2 or Section 19.1) shall be to
institute litigation either for a declaratory judgment or for a mandatory
injunction requiring that such consent be given (with the requesting
party hereby waiving any claim for damages, attorneys fees or any other
remedy unless the consenting party refuses to comply with a court order
or judgment requiring it to grant its consent).
28.5 One or more waivers of any covenant, term or condition of this
lease by either party shall not be construed as a waiver of a subsequent
breach of the same covenant, term or condition. The consent or approval
by either party to or of any act by the other party requiring such
consent or approval shall not be deemed to waive or render unnecessary
consent to or approval of any subsequent similar act.
28,6 Whenever a period of time is herein prescribed for action to be
taken by Landlord, Landlord shall not be liable or responsible for, and
there shall be excluded from the computation of any such period of time
any delays due to strikes, riots, acts of God, shortages of labor or
materials, war, governmental laws, regulations or restrictions or any
other causes of any kind whatsoever which are beyond the reasonable
control of Landlord.
28.7 Xxxxxx agrees that it will from time to time upon request by
Xxxxxxxx execute and deliver to Landlord a statement in recordable form
certifying that this lease is unmodified and in full force and effect (or
if there have been modifications, that the same is in full force and
effect as so modified). In addition, Tenant, upon Xxxxxxxx's request,
shall furnish to Landlord or to any third party or parties designated by
Landlord an estoppel/acceptance certificate in the form attached hereto
as Exhibit 'F', Any other such recordation of this lease by Xxxxxx, other
than at the written request of Landlord, shall constitute an event of
default under this lease.
28.8 * Intentionally Deleted
28.9 Notwithstanding anything contained herein to the contrary,
Xxxxxx agrees that Landlord shall have no personal liability with respect
to any of the provisions of this lease and Tenant shall look solely to
the estate and property of Landlord in the land and buildings comprising
the Property of which the leased premises form a part for the
satisfaction of Xxxxxx's remedies, including without limitation, the
collection of any judgment or the enforcement of any other judicial
process requiring the payment or expenditure of money by Landlord in the
event of any default or breach by Landlord with respect to any of the
terms and provisions of this lease to be observed and/or performed by
Landlord, subject, however, to the prior rights of any holder of any
Mortgage covering all or part of the Property, and no other assets of
Landlord or any principal of Landlord shall be subject to levy, execution
or other judicial process f or the satisfaction of Tenant's claim. This
Section shall inure to the benefit of Xxxxxxxx's successors and assigns
and their respective principals.
28.10 If any provision of this lease should be held to be invalid or
unenforceable, the validity and enforceability of the remaining
provisions of this lease shall not be affected thereby.
28.11 If this lease is in fact a sublease, Xxxxxx accepts this lease
subject to all of the terms and conditions of the underlying lease under
which Landlord holds the Property as lessee. Tenant covenants that it
will do no act or thing which would constitute a violation by Landlord
of his obligation under such underlying lease; provided, however, that
Tenant's agreement in this regard is premised on Landlord's assurances
to the effect that the terms of this lease do not violate such
underlying lease.
28.12 The laws of the State of Texas shall govern the interpretation,
validity, performance and enforcement of this lease. Venue for any
action under this lease shall be the county in which rentals are due
pursuant to Section 4.2 and Section 1.1 of this lease.
28.13 The captions used herein are for convenience only and do not
limit or amplify the provisions hereof.
28.14 Whenever herein the singular number is used, the same shall
include the plural, and words of any
gender shall include each other gender.
28.15 The terms, provisions and covenants contained in this lease
shall apply to, inure to the benefit of and be binding upon the parties
hereto and their respective heirs, successors in interest and legal
representatives except as otherwise herein expressly provided.
28.16 This lease contains the entire agreement between the parties,
and no rights are created in favor of either party other than as
specified or expressly contemplated in this lease. No brochure,
rendering information or correspondence shall be deemed to be part of
this agreement; unless specifically incorporated herein by reference.
In addition, no agreement shall be effective to change, modify or
terminate this lease in whole or in part unless such is in writing and
duly signed by the party against whom enforcement of such change,
modification or termination is sought.
28.17 LANDLORD AND TENANT HEREBY ACKNOWLEDGE THAT THEY ARE NOT RELYING
UPON ANY BROCHURE, RENDERING, INFORMATION, REPRESENTATION OR PROMISE OF
THE OTHER, OR OF THE AGENT OR COOPERATING AGENT, EXCEPT AS MAY BE
EXPRESSLY SET FORTH [PLACE AN -X- OR OTHER MARK DESIGNATING A CHOICE IN
THE APPROPRAITE BOX]:
x IN THIS LEASE
IN ________ AS WELL AS IN THIS LEASE.
NOTE: IF NO 'X' (OR OTHER MARK DESIGNATING A CHOICE) IS PLACED IN
EITHER BOX IN THIS SECTION 28.17, THEN THE FIRST BOX WILL BE DEEMED TO
HAVE BEEN MARKED.
28.18 STRIKE IF NOT APPLICABLE:
28.19 If Tenant shall breach this lease subsequent to the execution
hereof, but prior to the Commencement Date, Landlord, in addition to all
other rights and remedies herein provided, may retain prepaid rental and
security deposit as partial compensation for Landlord's damages and
expenses due to such breach.
28.20 Intentionally Deleted
28.21 Tenant warrants that it has had no dealing with any broker or
agent in connection with the negotiation
or execution of this Lease other Agent. In the event any agent or
broker other than Agent shall make a claim for a commission, or fee
based upon any alleged agreement with Tenant, Tenant shall be
responsible for payment thereof and hereby indemnities and holds
Landlord harmless from such claim for commission or fees.
28.22 NOTWITHSTANDING ANY PROVISION CONTAINED HEREIN TO THE CONTRARY,
TENANT HEREBY ACCEPTS THE DEMISED PREMISES IN AN 'AS IS" CONDITION AND
ACKNOWLEDGES AND AGREES THAT (I) NO REPRESENTATIONS OR WARRANTIES,
EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE CONDITION THEREOF OR THE
HABITABILITY OR SUITABILITY OF THE SAME FOR TENANT'S BUSINESS OPERATIONS
OR ANY OTHER PURPOSE, OR OTHERWISE, HAVE BEEN MADE TO TENANT BY LANDLORD
OR ANYONE FOR OR ON BEHALF OF LANDLORD, AND ANY WARRANTY OF
HABITABILITY, SUITABILITY OR FIT ACTING THE DEMISED PREMISES FOR A
PARTICULAR USE OR PURPOSE, EITHER EXPRESS OR IMPLIED, IF ANY, ARE HEREBY
DISCLAIMED BY LANDLORD AND IRREVOCABLY WAIVED BY TENANT, AND (if)
LANDLORD SHALL BE UNDER NO OBLIGATION TO MAKEANY ALTERATIONS OR
IMPROVEMENTS TO THE DEMISED PREMISES OTHER THAN AS REFERENCED IN EXHIBIT
"D".
28.23 This lease consists of twenty-eight articles and Exhibits "A"
through "F" With the exception of Article VII, in the event any provision
of an exhibit or other attached page shall be inconsistent with a
provision in the body of the lease, the provision as set forth in the
exhibit shall be deemed to control.
28.24 This offer to lease shall expire and be of no further force and
effect if not fully executed by 5:00 p.m. October 28, 1994.
EXECUTED as of the latest date accompanying a signature by Landlord or
Tenant below.
LANDLORD:
ATTEST or WITNESS /s/ Xxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxxx
/s/ Xxx X. Xxxxx as Trustee of the Xxx X. Xxxxx
Family Trust UA Dated February 23, 1990
Date of Signature October 27, 1994
Taxpayer Identification No.
TENANT: Xxxxxx Xxxxxx Corporation
By: /s/ Xxxx X. Xxxx
Title: Vice President
Date of Signature October 2, 1994
Taxpayer Identification
AGENT: Xxxxxxx & Xxxxxxx
By
Address 00000 Xxxxx Xxxxx, Xxxxx 0000, Xxxxxx, XX 00000
LIST OF EXHIBITS
Exhibit "A" Site Plan
Exhibit "B" Legal Description
Exhibit "C" Guaranty
Exhibit "D" Construction Exhibit
Exhibit "E" Subordination Agreement
Exhibit "F" Estoppel
EXHIBIT "B"
LEGAL DESCRIPTION
BEING a tract of land situated in the X.X. Xxxxxxx Surveys, Abstract No.
329, and being part of Lot 5, Block A/8042 of Santa Fe Jupiter Road
Industrial District Addition IV, an addition to the City of Dallas as
recorded in Volume 82096, Page 2072, Deed Records, Dallas, County,
Texas, and being more particularly described as follows:
BEGINNING at an iron rod set for corner situated in the East line of
Petal Street (a 60 foot right-of-way) and being South 00 29' 00" East, a
distance of 174.90 feet from the most Southerly point on a 10' X 10'
corner clip at the intersection of the South line of Grader Street (a 60
foot right-of-way), and the East line of said Petal Street;
THENCE North 89 31' 00" East, departing said Petal Street a distance of
453.40 feet to an iron rod set for corner situated in the West line of
Lead Track "B" (a 34 foot right-of-way);
THENCE along the West line of said Lead Track "B" the following:
South 00 29' 00' East, a distance of 248.85 feet to an iron rod found
for corner and
being the beginning of a curve to the right;
Along said curve having a central angle of 31 10' 44", a radius of
461.34 feet, and an arc length of 251.05 feet to an iron rod found for
corner situated in the Northeast line of said Petal Street;
THENCE along the Northeast line of said Petal Street the following:
North 51 36' 29" West, a distance of 367.65 feet to an iron rod set for
corner and being the beginning of a curve to the right;
Along said curve having a central angle of 51 07' 29", a radius of
270.00 feet, and an arc length of 240.91 feet to an iron rod set for
corner;
North 00 29' 00" West, a distance of 46.74 feet to the POINT OF
BEGINNING and containing 3.5201 acres or 153,335 square feet of land,
more or less.
