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EXHIBIT 10.2
"EXHIBIT A"
Standard Commercial Lease Agreement
1986
COMMERCIAL LEASE AGREEMENT
THIS Lease AGREEMENT is entered into by:
1. LANDLORD: TDC Dallas Partners No. 2. Ltd. ("Landlord").
2. TENANT: One Up Corporation ("Tenant").
3. LEASED PREMISES: In consideration of the rents, term and
covenants of this Lease Agreement (the "Lease"), Landlord hereby
leases to Tenant certain premises (the "Leased Premises") containing
approximately 14,200 square feet within the building or project known
as Valley View Tech Center II/III, and located at 12801 Stemmons
Freeway, suite 710 on a certain tract of land in Farmers Branch,
Dallas County, Texas. Such land (which is described in the attached
Exhibit A), together with the building(s), landscaping, parking and
driveway areas, sidewalks, and other improvements thereon shall be
referred to in this Lease as the "Project". In the case of a
multi-building Project, the word "Building" shall refer to the
particular building in which the Leased Premises are located and the
tract of land upon which such building is located. In the case of a
single building Project the term "Building" as used herein shall be
synonymous with the term "Project". If the Leased Premises encompass
an entire building, then the term "Leased Premises" shall be
synonymous with "Building". A xxxxxx description of the Leased
Premises, including a floor plan thereof, is contained in Exhibit B
to be attached.
4. TERM:
(a) The term of this Lease shall be Thirty Six (36) months and
Twenty Four (24) days commencing on April 7, 1997 (the "Commencement
Date") and terminating on the last day of April, 2000 (the
"Termination Date"). The Commencement Date may be subject to change,
however, pursuant to Subparagraphs (b) and (c) below. However, any
such change in the Commencement Date shall have no effect upon the
Termination Date.
(b) Tenant acknowledges that it has inspected and accepts the
Leased Premises in their present condition as suitable for Tenant's
purposes. If this Lease is executed before the Leased Premises become
vacant or otherwise available for occupancy, or if any present tenant
or occupant of the Leased Premises holds over and Landlord cannot
acquire possession of the Leased Premises prior to the Commencement
Date stated above, Tenant agrees to accept possession of the Leased
Premises at such time as Landlord is able to tender the same, which
date shall then be the Commencement Date of the Lease term.
(c) [OMITTED]
(d) Tenant acknowledges that no representations or promises
regarding repairs, alterations, remodeling, or improvements to the
Leased Premises have been made by Landlord, its agents, employees, or
other representatives, unless such are expressly set forth in this
Lease, and that Tenant is solely responsible for applying for and
obtaining a certificate of occupancy for the Leased Premises. Tenant
agrees that if its occupancy of the Leased Premises is delayed under
the circumstances described in Subparagraph (b) or (c) above, this
Lease shall nonetheless continue in full force and effect. However,
any rental amounts applicable to such period of delay shall be abated
and such abatement shall constitute full settlement of all claims by
Tenant against Landlord by reason of any such delay in possession of
the Leased Premises. Tenant's taking possession of the leased
Premises shall conclusively establish that the improvements, if any,
to be made by Landlord under the terms of this Lease, have been
completed in accordance with the plans and specifications therefor
and that the Leased Premises are in good and satisfactory condition
as of the date of Tenant's possession, unless Tenant notifies
Landlord in writing specifying any defects within ten (10) days after
taking possession. Landlord shall use reasonable diligence to repair
promptly such items but Tenant shall have no claim for damages or
rebate or abatement of rent by reason thereof. After the Commencement
Date and upon completion of any necessary repairs as provided above.
Tenant shall, upon demand, execute and deliver to Landlord a letter
of acceptance of the Leased Premises and acknowledgment of the date
of the Commencement Date.
5. BASE RENT AND SECURITY DEPOSIT:
(a) Tenant agrees to pay to Landlord as rent the sum of Three
Hundred Ninety-One Thousand Nine Hundred Twenty and 00/100 Dollars
($391,920) subject to adjustment for early or delayed occupancy under
the terms hereof. Such rent shall be payable in monthly amounts of
Ten Thousand Six Hundred Fifty and no/100 Dollars ($10,650.00) each,
in advance, without demand deduction or offset (sometimes referred to
in this Lease as the "Base Rent" or "Base Rental"). Such rental
amounts shall be due and payable to Landlord in lawful money of the
United States of America at the address shown below. An amount equal
to one monthly Base Rental payment shall be due and payable on the
date Tenant executes this Lease and such amount shall be applied to
the rent due for the first complete calendar month occurring after
the Commencement Date, provided that if the Commencement Date should
be a date other than the first day of a calendar month the rent for
such partial month shall be prorated. All succeeding installments of
rent shall be due and payable on or before the first day of each
succeeding calendar month during the Lease term. The amount of the
Base Rent shall be adjusted as provided in Paragraph 6 below.
(b) On the date Tenant executes this Lease there shall be due
and payable by Tenant a security deposit in an amount equal to one
Two monthly Base Rental installment. Such deposit shall be held by
Landlord (without any obligation to pay interest thereon or segregate
such monies from Landlord's general funds) as security for the
performance of Tenant's obligations under this Lease. Tenant agrees
to increase such security deposit from time to time so that it is at
all times equal to one Two monthly Base Rental installment, as
adjusted pursuant to Paragraph 6(a) below. Tenant shall deposit cash
with Landlord in an amount sufficient so to increase the security
deposit within five (5) days after written demand by Landlord. It is
expressly understood that the
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security deposit is not an advance payment of rental or a measure of
Landlord's damages in the event of Tenant's default under this Lease.
Upon the occurrence of any event of default by Tenant or breach by
Tenant of its covenants under this Lease, Landlord may, from time to
time, without prejudice to any other remedy provided herein or
provided by law, use, apply, or retain all or part of the security
deposit for the payment of any rent or other sum in default, or for
the payment of any other amount which Landlord my spend or become
obligated to spend by reason of Tenant's default, or for payment of
any other amount which Landlord may spend or become obligated to
spend by reason of Tenant default or breach, or to compensate
Landlord for any damage, injury, expense or liability caused to
Landlord by such default or breach. If any portion of the security
deposit is so used or applied, Tenant shall, within five (5) days
after written demand therefor, deposit cash with Landlord in an
amount sufficient to restore the security deposit to the amount
required by this Paragraph. Tenant's failure to do so shall be a
default under this Lease. The balance of the security deposit shall
be returned by Landlord to Tenant at such time after termination of
this Lease that all of Tenant's obligations have been fulfilled.
(c) Other remedies for nonpayment of Rent notwithstanding, if
the monthly Base Rental payment is not received by Landlord on or
before the tenth (10th) day of the month for which such rent is due,
or if any other payment due Landlord by Tenant hereunder (such sums
being deemed to be additional Rent) is not received by Landlord on or
before the tenth (10th) day of the month next following the month in
which Tenant was invoiced, a service charge of five percent (5%) of
such past due amount shall be additionally due and payable by Tenant.
Such service charge shall be cumulative of any other remedies
Landlord may have for nonpayment of Rent and other sums payable under
this Lease.
(d) If three (3) consecutive monthly Rental payments in one
calendar year or any for five (5) monthly Rental payments during the
Lease term (or any renewal or extension thereof) are not received by
Landlord on or before the tenth (10th) day of the month for which
such Rent was due, the Base Rent hereunder shall automatically become
due and payable by Tenant in advance in quarterly installments equal
to three (3) months' Base Rent each. The first of such quarterly Base
Rent payments shall be due and payable on the first day of the next
succeeding calendar month and on the first day of every third
(3rd) calendar month thereafter. This remedy shall be cumulative of
any other remedies of Landlord under this Lease for nonpayment of
Rent.
6. ADDITIONAL RENT:
(a) Taxes, Insurance and Common Area Maintenance
(1) In the event the "Tax, Insurance and Common Area
Maintenance Expenses" (as defined below) of the Building shall in any
calendar year during the term of this Lease exceed the sum of the
actual expenses for calendar year 1997 per square foot, then with
respect to such excess (the "Tax, Insurance and Common Area
Maintenance Differential"), Tenant agrees to pay as additional rental
Tenant's pro rata share of the Tax, Insurance and Common Area
Maintenance Differential within ten (10) days following receipt of an
invoice from Landlord stating the amount due. The pro rata share to
be paid by Tenant is Nine and 7521 ten thousandths percent (9.7521%)
subject, however, to adjustment for any expansion of the Leased
Premises. In the case of a multi-building Project, if such Tax,
Insurance and Common Area Maintenance Expenses are not separately
assessed to the Building but are assessed against the Project as a
whole, Landlord shall determine the portion of such Tax, Insurance
and Common Area Maintenance Expenses allocable to the Building in
which the Leased Premises are located.
(2) At or prior to the commencement of this Lease and at any
time during the Lease term, Landlord may deliver to Tenant a written
estimate of any additional rent applicable to the Leased Premises
(based on the pro rata share stated above) which may be anticipated
for excess Tax, Insurance and Common Area Maintenance Expenses during
the calendar year in which this Lease commences or for any succeeding
calendar year, as the case may be. Based upon such written estimate,
the monthly Base Rental shall be increased by one-twelfth (1/12) of
the estimated additional rent.
(3) Statements showing the actual Tax and Insurance Expenses
(as well as the actual Common Area Maintenance Expenses, as defined
in Paragraph 6(b) below) and Tenant's proportionate share thereof
(hereinafter referred to as the "Statement of Actual Adjustment")
shall be delivered by Landlord to Tenant after any calendar year in
which additional rental was paid or due by Tenant. Within ten (10)
days after the delivery by Landlord to Tenant of such Statement of
Actual Adjustment, Tenant shall pay Landlord the amount of any
additional rental shown on such statement as being due and unpaid. If
such Statement of Actual Adjustment shows that Tenant has paid more
than the amount of additional rental actually due from Tenant for the
preceding calendar year and if Tenant is not then in default under
this Lease, Landlord shall credit the amount of such excess to the
next Base Rental installment due from Tenant.
(4) "Tax and Insurance Expenses" shall mean: (i) all ad
valorem, rental, sales, use, and other taxes (other than Landlord's
income taxes), special assessments, and other governmental charges,
and all assessments due to deed restrictions and/or owner's
associations which accrue against the Building during the term of
this Lease; and (ii) all insurance premiums paid by Landlord with
respect to the Building including, without limitation, public
liability, casualty, rental, and property damage insurance.
(b) Common Area Maintenance
(1) "Common Area Maintenance Expenses" shall mean all
expenses (other than the Tax and Insurance Expenses described above)
incurred by Landlord for the maintenance, repair, and operation of
the Building, (excluding only structural soundness of the roof,
foundation and exterior walls) including, but not limited to,
management fees, utility expenses (if not separately metered),
maintenance and repair costs, sewer, landscaping, trash and security
costs (if furnished by Landlord), wages and fringe benefits payable
to employees of Landlord whose duties are connected with the
operation and maintenance of the Building, amounts paid to
contractors or subcontractors for work or services performed in
connection with the operation and maintenance of the Building, all
services, supplies, repairs, replacements or other expenses for
maintaining, repairing, and operating the Building, including without
limitation common areas and parking areas and roof, exterior wall and
foundation work that is not related to structural soundness.
(2) The term "Common Area Maintenance Expenses" does not
include the cost of any capital Improvement to the Building other
than the reasonably amortized cost of capital improvements which
result in the reduction of Insurance Expenses or Common Area
Maintenance Expenses. Further, the term "Common Area Maintenance
Expenses" shall not include repair, restoration or other work
occasioned by fire, windstorm or other casualty with respect to which
Landlord actually receives insurance proceeds, income and franchise
taxes of Landlord, expenses incurred in leasing to or procuring of
tenants, leasing commissions, advertising expenses, expenses for the
renovating of space for new tenants, interest or principal payments
on any mortgage or other indebtedness of Landlord, compensation paid
to any employee of Landlord above the grade of building
superintendent, or depreciation allowance or expense.
(c) If the Commencement Date of this Lease is a day other then
the first day of a month, or if the Termination Date is a day other
than the last day of a month, the amount shown as due by Tenant on
the Statement of Actual Adjustment shall reflect a proration based on
the ratio that the number of days this Lease was in effect during
such month bears to the actual number of days in said month.
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(d) The failure of Landlord to exercise its rights hereunder to
estimate expenses and require payment of same as additional rental
shall not constitute a waiver of such rights which rights may be
exercised from time to time at Landlord's discretion.
(e) If the nature of Tenant's business or use of the Leased
Premises is such that additional costs are incurred by Landlord for
cleaning, sanitation, trash collection or disposal services, Tenant
agrees to pay as additional rental to Landlord the amount of such
additional costs upon demand.
7. TENANT REPAIRS AND MAINTENANCE:
(a) Tenant shall maintain all parts of the Leased Premises and
their appurtenances (except those for which Landlord is expressly
responsible under this Lease) in good, clean and sanitary condition
at its own expense. Tenant shall promptly make all necessary repairs
and replacements to the Leased Premises, including but not limited
to, electric light lamps or tubes, windows, glass and plate glass,
interior and exterior doors, any special office entry, interior walls
and finish work, floors and floor coverings, downspouts, gutters,
heating and air conditioning systems, dock boards, truck doors, dock
bumpers, plumbing work and fixtures other than common building sewage
lines. Tenant shall be obligated to repair wind damage to glass
caused by events other than hurricanes or tornadoes. Otherwise,
however, Tenant shall not be obligated to repair any damage caused by
fire, hurricane, tornado or other casualty covered by the insurance
maintained by Landlord.
(b) Tenant shall not damage or disturb the integrity, structural
soundness, or support of any wall, roof, or foundation of the Leased
Premises. Any damage to these walls caused by Tenant or its
employees, agents or invitees shall be promptly repaired by Tenant at
its sole cost and expense.
(c) Landlord shall have the right to coordinate any repairs and
other maintenance of any rail tracks serving or to serve the Project,
and if Tenant uses such rail tracks, Tenant shall reimburse Landlord
from time to time upon demand for a share of the cost of such repairs
and maintenance and any other sums specified in any agreement to
which Landlord is a party respecting such tracks. Tenant's share of
such costs shall be additional rent and shall reflect a proration
based on the ratio that the space contained in the Leased Premises
bears to the entire space occupied by rail users in the Project.
(d) Tenant shall, at its own cost and expense, enter into a
regularly scheduled preventive maintenance/service contract with a
maintenance contractor for servicing all heating and air conditioning
systems and equipment within the Leased Premises. The maintenance
contractor and the contract must be approved by Landlord. The service
contract must include all services suggested by the equipment
manufacturer within the operation/maintenance manual and must become
effective (and a copy delivered to Landlord) within thirty (30) days
of the date Tenant takes possession of the Leased Premises. If Tenant
fails to enter into such service contract as required, Landlord shall
have the right to do so on Tenant's behalf and Tenant agrees to pay
Landlord the cost and expense of same upon demand. Landlord shall
provide Tenant a warranty through September 30, 1997 on all heating
and air conditioning systems and equipment within the Leased
Premises. **
(e) Tenant shall pay all charges for pest control and
extermination within the Leased Premises.
(f) At the termination of this Lease, Tenant shall deliver the
Leased Premises "broom clean" to Landlord in the same good order and
condition as existed at the Commencement Date of this Lease, ordinary
wear, natural deterioration beyond the control of Tenant, damage by
fire, tornado or other casualty excepted.
(g) Not in limitation on the foregoing, it is expressly
understood that Tenant shall repair and pay for all damage caused by
the negligence of Tenant, Tenant's employees, agents or invitees, or
caused by Tenant's default hereunder. All requests for repairs or
maintenance that are the responsibility of Landlord under this Lease
must be made in writing to Landlord at the address set forth below.
8. LANDLORD'S REPAIRS: Landlord shall be responsible, at its
expense, only for the structural soundness of the roof, foundation
and exterior walls of the Building. Any repair to the roof,
foundation or exterior walls occasioned by the act or omission of
Tenant, or its agents, employees, guests or invitees shall be the
responsibility of Tenant. The term "walls" as used in this Paragraph
8 shall not include windows, glass or plate glass, interior doors,
special store fronts, office entries or exterior doors. Landlord's
liability with respect to any defects, repairs or maintenance for
which Landlord is responsible at its expense under this Lease shall
be limited to the cost of such repairs or maintenance or the curing
of such defect. As expenses included in Common Area Maintenance
Expenses, Landlord will be responsible for landscaping and
maintenance of common areas and parking areas, exterior painting, and
common sewage line plumbing. Tenant shall immediately give Landlord
written notice of defects or need for repairs, after which Landlord
shall have a reasonable opportunity to repair same or cure such
defect. Landlord shall not be required to perform any covenant or
obligation of this Lease, or be liable in damages to Tenant, so long
as the performance or non-performance of the covenant or obligation
is delayed, caused by, or prevented by an act of God or force
majeure. An "act of God" or "force majeure" is defined for purposes
of this Lease as strikes, lockouts, sit-downs, material or labor
restrictions by any governmental authority, riots, floods, washouts,
explosions, earthquakes, fire, storms, acts of the public enemy,
wars, insurrections and any other similar cause not reasonably within
the control of Landlord, and which by the exercise of due diligence
Landlord is unable, wholly or in part, to prevent or overcome.
9. UTILITY SERVICE: Tenant shall pay the cost of all utility
services, including, but not limited to, initial connection charges
and all charges for gas, water, and electricity used on the Leased
Premises. If the Leased Premises are separately metered, Tenant shall
pay such costs directly to the appropriate utility company.
Otherwise, Tenant shall pay such costs pursuant to Paragraph 6(b)
above. Tenant shall pay all costs caused by Tenant introducing
excessive pollutants into the sanitary sewer system, including
permits, fees and charges levied by any governmental subdivision for
any pollutants or solids other than ordinary human waste. If Tenant
can be clearly identified as being responsible for obstructions or
stoppage of the common sanitary sewage line, the Tenant shall pay the
entire cost thereof, upon demand, as additional rent. Tenant shall be
responsible for the installation and maintenance of any dilution
tanks, holding tanks, settling tanks, sewer sampling devices, sand
traps, grease traps or similar devices which may be required by the
appropriate governmental subdivision for Tenant's use of the sanitary
sewer system. Tenant shall also pay all surcharges (i.e. charges in
excess of normal charges) levied due to Tenant's abnormal use of
sanitary sewer or waste removal services so that no such surcharges
shall affect Landlord or other tenants in the Project under Paragraph
6(b) above.
10. SIGNS: No sign, door plaques, advertisement, or notice shall be
displayed, painted or affixed by Tenant on any part of the Project or
Building, parking facilities, or Leased Premises without prior
written consent of Landlord. The color, size, character, style,
material, and placement shall be approved by Landlord, and subject to
any applicable governmental laws, ordinances, regulations, project
specifications, and other requirements. Sign on doors and entrances
to the Leased Premises, if approved by Landlord, shall be placed
thereon by a contractor approved by Landlord and paid for by Tenant.
Tenant shall remove all such signs at the termination of this lease.
Such installations and removals shall be made in such manner as to
avoid injury or defacement of the Project and other improvements, and
Tenant, at its sole expense, shall repair any injury or defacement,
including, without limitation, any discoloration caused by such
installation and/or removal.
** However, this warranty shall become null and void if Tenant does
not provide Landlord with evidence that it has entered into a
preventitive maintenance/service contract as described herein.
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11. USAGE: Tenant warrants and represents to Landlord that the
Leased Premises shall be used and occupied only for the purpose of
general office/sales/computer software company. Any change in the
stated usage purposes or in the scope or extent of such usage as
previously described to Landlord by Tenant shall be subject to the
prior written approval of Landlord. Tenant shall occupy the Leased
Premises, conduct its business and control its agents, employees,
invitees and visitors in a lawful and reputable way and as not to
create any nuisance or otherwise interfere with, annoy or disturb any
other tenant in its normal business operations or Landlord in its
management of the project. Tenant shall not commit, or allow to be
committed, any waste on the Leased Premises.
12. INSURANCE:
(a) Tenant shall not permit the Leased Premises to be used in
any way which would, in the opinion of Landlord, be hazardous or
which would in any way increase the cost of or render void the fire
insurance on improvements or contents in the Project belonging to
Landlord or other tenants. If at any time during the term of this
Lease the State Board of Insurance or other insurance authority
disallows any of Landlord's sprinkler credits or imposes an
additional penalty or surcharge in Landlord's insurance premiums
because of Tenant's original or subsequent placement or use of
storage racks or bins, method of storage, or nature of Tenant's
inventory or any other act of Tenant, Tenant agrees to pay as
additional rental the increase in Landlord's insurance premiums. If
an increase in the fire and extended coverage premiums paid by
Landlord for the Building in which Tenant occupies space is caused by
Tenant's use or occupancy of the Leased Premises; or if Tenant
vacates the Leased Premises and causes an increase, then Tenant shall
pay as additional rental the amount of such increase to Landlord.
(b) Tenant shall procure and maintain throughout the term of
this Lease a policy or policies of insurance, at its sole cost and
expense, insuring both Landlord and Tenant against all claim, demands
or actions arising out of or in connection with: (i) the Leased
Premises; (ii) the condition of the Leased Premises; (iii) Tenant's
operations in and maintenance and use of the Leased Premises; and
(iv) Tenant's liability assumed under this Lease. The limits of such
policy or policies shall be not less than one million dollars
($1,000,000) combined single limit coverage per occurrence for injury
to persons (including death) and/or property damage or destruction,
including loss of use. All such policies shall be procured by Tenant
from responsible insurance companies satisfactory to Landlord.
Certified copies of such policies, together with receipts for payment
of premiums, shall be delivered to Landlord prior to the Commencement
Date of this Lease. Not less than fifteen (15) days prior to the
expiration date of any such policies, certified copies of renewal
policies and evidence of the payment of renewal premiums shall be
delivered to Landlord. All such original and renewal policies shall
provide for at least thirty (30) days written notice to Landlord
before such policy may be cancelled or changed to reduce insurance
coverage provided thereby. Upon request of Landlord, Tenant further
agrees to complete and return to Landlord an insurance questionnaire
(such form to be provided by Landlord) regarding Tenant's insurance
coverage and intended use of the Leased Premises. Tenant warrants and
represents that all information contained in such questionnaire shall
be true and correct as of the date thereof and shall be updated by
Tenant from time to time upon Landlord's request.
13. RELOCATION: Upon request by Landlord during the term of this
Lease, Tenant agrees to relocate to other space in the Building
and/or Project designated by Landlord, provided such other space is
as large or larger than the Leased Premises and has at least the same
number of windows. Landlord shall pay all out-of-pocket expenses of
any such relocation, including the expenses of moving and
reconstructing all Tenant furnished and Landlord furnished
improvements. In the event of such relocation, this Lease shall
continue in full force and effect without any change in its terms
other than substitution of the new description of the Leased Premises
for the original description set forth in Paragraph 3 of this Lease.
14. COMPLIANCE WITH LAWS, RULES AND REGULATIONS: Tenant shall
comply with all applicable laws, ordinances, orders, rules and
regulations of state, federal, municipal, or other agencies or bodies
relating to the use, condition and occupancy of, and business
conducted on, the Leased Premises, including without limitation, the
Resource Conservation and Recovery Act, the Comprehensive
Environmental Response Act, and the rules, regulations and directives
of the U.S. Environmental Protection Agency. Tenant shall also comply
with the rules of the Project which may hereafter be adopted by
Landlord. Landlord shall have the right at all times to change the
rules and regulations of the Project or to amend them in any
reasonable manner as may be deemed advisable for the safety, care,
cleanliness, and good order of the Project and Leased Premises. All
rules and regulations of the Project and any changes or amendments
thereto will be sent by Landlord to Tenant in writing and shall
thereafter be carried out and observed by Tenant.
15. ASSIGNMENT AND SUBLETTING: The Tenant agrees not to assign,
transfer, or mortgage this Lease or any right or interest therein, or
sublet the Leased Premises or any part thereof, without the prior
written consent of Landlord.* No assignment or subletting made with
the consent of Landlord shall relieve Tenant of its obligations
hereunder, and Tenant shall continue to be liable as a principal (and
not as a guarantor or surety) to the same extent as though no
assignment or sublease had been made. Consent by Landlord to an
assignment or sublease shall not be construed to be consent to any
additional assignment or subletting. Each such successive act shall
require similar consent of Landlord. Landlord shall be reimbursed by
Tenant for any costs or expenses incurred as a result of Tenant's
request for consent to any such assignment or subletting. In the
event Tenant subleases the Leased Premises, or any portion thereof,
or assigns this Lease with the consent of the Landlord at an annual
Base Rental exceeding that stated herein, such excess shall be paid
by Tenant to Landlord as additional rental hereunder within ten (10)
days after receipt by Tenant. Upon the occurrence of an "event of
default" as defined below, if all or any part of the Leased Premises
are then assigned or sublet, Landlord may, in addition to any other
remedies provided by this Lease or provided by law, collect directly
from the assignee or subtenant all rents due to Tenant. Landlord
shall have a security interest in all properties on the Leased
Premises to secure payment of such sums. Any collection directly by
Landlord from the assignee or subtenant shall not be construed,
however, to constitute a novation or release of Tenant from the
further performance of its obligations under this Lease.
Notwithstanding the foregoing, it is expressly agreed that if this
Lease is assigned to any person or entity pursuant to the provisions
of the Bankruptcy Code, 11 U.S.C. Section 101 et esp. (the
"Bankruptcy Code"), any and all monies or other considerations
payable or otherwise to be delivered in connection with such
assignment shall be paid or delivered to Landlord, shall be and
remain the exclusive property of Landlord and shall not constitute
property of Tenant or of the estate of Tenant within the meaning of
the Bankruptcy Code. Any and all monies or other considerations
constituting Landlord's property under the preceding sentence not
paid or delivered to Landlord shall be held in trust for the benefit
of Landlord and be promptly paid or delivered to Landlord. Any person
or entity to which this Lease is assigned pursuant to the provisions
of the Bankruptcy Code shall be deemed without further act or deed to
have assumed all of the obligations arising under this Lease on and
after the date of such assignment. Any such assignee shall upon
demand execute and deliver to Landlord an instrument confirming such
assumption.
16. ALTERATIONS AND IMPROVEMENTS:
(a) Tenant shall not make or perform, or permit the making or
performance of, any initial or subsequent tenant finish work or any
alterations, installations, decorations, improvements, additions or
other physical changes in or about the Leased Premises (referred to
collectively as "Alterations") without Landlord's prior consent.
Landlord agrees not to withhold its consent unreasonably to any
nonstructural Alterations proposed
** Which consent shall not be unreasonably withheld.
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to be made by Tenant to adapt the Leased Premises for Tenant's
business purposes. Notwithstanding the foregoing provisions or
Landlord's consent to any Alterations, all Alterations shall be made
and performed in conformity with and subject to the following
provisions: All Alterations shall be made and performed at Tenant's
sole cost and expense and at such time and in such manner as Landlord
may from time to time reasonably designate. Alterations shall be made
only by contractors or mechanics approved by Landlord, such approval
not to be unreasonably withheld. No Alteration shall affect any part
of the Building other than the Leased Premises or adversely affect
any service required to be furnished by Landlord to Tenant or to any
other tenant or occupant of the Building or reduce the value of the
Building. No alteration shall affect the outside appearance of the
Building. Tenant shall submit to Landlord detailed plans and
specifications (including layout, architectural, mechanical and
structural drawings) for each proposed Alteration and shall not
commence any such Alteration without first obtaining Landlord's
written approval of such plans and specifications. Prior to the
commencement of each proposed Alteration, Tenant shall furnish to
Landlord duplicate original policies of worker's compensation
insurance covering all persons to be employed in connection with such
Alterations, including those to be employed by all contractors and
subcontractors and comprehensive public liability insurance
(including property damage coverage) in which Landlord, its agents,
and any lessor under any ground or underlying lease, and any
mortgagee of the Building shall be named as parties insured, which
policies shall be issued by companies, and shall be in form and
amounts, satisfactory to Landlord and shall be maintained by Tenant
until the completion of such Alteration. If Landlord shall require
Tenant to assure payment of all costs of such alterations, prior to
commencement of any approved Alteration, Tenant shall cause to be
issued and delivered to Landlord an irrevocable documentary letter of
credit or payment bond in the full amount of the cost of the said
approved Alterations issued by a substantial banking institution
reasonably acceptable to Landlord payable in whole or in part, from
time to time to the order of Landlord upon written demand accompanied
by Landlord's certification that Tenant has defaulted with respect to
the obligation secured thereby. The term of the letter of credit
shall be from date of issuance through ninety (90) days after
completion of construction of the approved Alterations. Tenant shall
cause its contractor to provide Landlord with a certificate of
completion of the Alterations and a bills paid affidavit and full
lien waiver; and upon receipt of same, and no fewer than thirty-one
(31) days following completion if Tenant is not in default hereunder,
Landlord shall return the letter of credit to Tenant unused and
endorsed for cancellation. Tenant shall, if requested by Landlord at
the time of Landlord's consent to the Alterations, agree to restore
the Leased Premises at the termination of this Lease to their
condition prior to making such Alterations. All permits, approvals
and certificates required by all governmental authorities shall be
timely obtained by Tenant and submitted to Landlord. Notwithstanding
Landlord's approval of plans and specifications for any Alterations,
all Alterations shall be made and performed in full compliance with
applicable laws, orders and regulations of Federal, State, County,
and Municipal authorities and with all directions, pursuant to law,
of all public officers, and with all applicable rules, orders,
regulations and requirements of the Dallas Board of Fire Underwriters
or any similar body. All alterations shall be made and performed in
accordance with the Building rules. All materials and equipment to be
incorporated in the Leased Premises as a result of all Alterations
shall be new and first quality. No such materials or equipment shall
be subject to any lien, encumbrance, chattel mortgage or title
retention or security agreement. If such Alterations are being
performed by Tenant in connection with Tenant's initial occupancy of
the Leased Premises, Tenant agrees to make proper application for,
and obtain, a certificate of occupancy from the city in which the
Leased Premises are located. Tenant shall furnish such certificate to
Landlord promptly after issuance of same.
(b) Tenant shall not at any time prior to or during the term of
this Lease, directly or indirectly employ or permit the employment
of, any contractor, mechanic, or laborer in the Leased Premises,
whether in connection with any Alteration or otherwise, if such
employment will interfere or cause any conflict with other
contractors, mechanics, or laborers engaged in the construction,
maintenance or operation of the Building by Landlord, Tenant, or
other. In the event of any such interference or conflict. Tenant,
upon demand of Landlord, shall cause all contractors, mechanics, or
laborers causing such interference or conflict to leave the Building
immediately.
(c) All appurtenances, fixtures, improvements, and other
property attached to or installed in the Leased Premises, whether by
Landlord or Tenant or others, and whether at Landlord's expense or
Tenant's expense, or the joint expense of Landlord and Tenant, shall
be and remain the property of Landlord, except that any such
fixtures, improvements, additions, and other property which have been
installed at the sole expense of Tenant and which are removable
without material damage to the Leased Premises shall be and remain
the property of Tenant. At Landlord's option, Tenant shall remove any
property belonging to Tenant at the end of the term hereof, and
Tenant shall repair or, at Landlord's option, shall pay to Landlord
the cost of repairing any damage arising from such removal. Any
replacements of any property of Landlord, whether made at Tenant's
expense or otherwise, shall be and remain the property of Landlord.
17. CONDEMNATION:
(a) If, during the term (or any extension or renewal) of this
Lease, all or a substantial part of the Leased Premises are 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, and the taking would prevent or materially interfere
with the then current use of the Leased Premises, 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.
(b) If a portion of the Leased Premises is taken as described
above and this Lease is not terminated as provided in subparagraph
(a) above, the Rent payable under this Lease during the unexpired
portion of the term shall be adjusted to such an extent as may be
fair and reasonable under the circumstances.
(c) In the event of such taking or private purchase in lieu
thereof, Landlord and Tenant shall each be entitled to receive any
sums separately awarded to each party by the condemning authority. In
the event separate awards to Landlord and Tenant are not made,
Landlord shall be entitled to receive any and all sums by the
condemning authority.
18. FIRE AND CASUALTY:
(a) If the Building should be damaged or destroyed by fire,
tornado, or other casualty, Tenant shall give immediate written
notice thereof to Landlord.
(b) If the Building should be totally destroyed by fire,
tornado, or other casualty, or if it should be so damaged thereby
that rebuilding or repairs cannot in Landlord's estimation be
completed within one hundred eighty (180) days after the date on
which Landlord is notified by Tenant of such damage, this Lease shall
terminate and the Rent shall be abated during the unexpired portion
of this Lease, effective upon the date of occurrence of such damage.
(c) If the Building should be damaged by any peril covered by
the insurance maintained by Landlord, but only to such extent that
rebuilding or repairs can in Landlord's estimation be completed
within one hundred twenty (120) days after the date on which Landlord
is notified by Tenant of such damage, this Lease shall not terminate
and Landlord shall, to the extent of insurance proceeds received,
then proceed with reasonable diligence to rebuild and repair the
Building to substantially the same condition in which it existed
prior to such damage. Landlord shall not be required, however, to
rebuild, repair, or replace any part of the partitions, fixtures,
additions, and other improvements which may have been placed in, on,
or about the Lease
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Premises by Tenant. If the Leased Premises are untenantable in whole
or in part following such damage, the Rent payable hereunder during
the period in which they are untenantable shall be reduced to such
extent as may be fair and reasonable under all of the circumstances.
If Landlord should fail to complete such repairs and rebuilding
within one hundred twenty (120) days after the date on which Landlord
is notified by Tenant of such damage, Tenant may terminate this Lease
by delivering written notice of termination to Landlord. Such
termination shall be Tenant's exclusive remedy and all rights and
obligations of the parties under this Lease shall then cease.
Notwithstanding the foregoing provisions of this subparagraph (c),
Tenant agrees that if the Leased Premises, the Building and/or
Project are damaged by fire or other casualty caused by the fault or
negligence of Tenant or Tenant's agents, employees or invitees,
Tenant shall have no option to terminate this Lease, even if the
damage cannot be repaired within one hundred twenty (120) days, and
the Rent shall not be abated or reduced before or during the repair
period.
(d) Notwithstanding anything herein to the contrary, if the
holder of any indebtedness secured by a mortgage or deed of trust
covering the Building and/or Project requires that the insurance
proceeds be applied to such indebtedness, then Landlord shall have
the right to terminate this Lease by delivering written notice of
termination to Tenant within fifteen (15) days after such requirement
is made. All rights and obligations under this Lease shall then
cease.
19. CASUALTY INSURANCE: Landlord shall at all times during the term
of this Lease maintain a policy or policies of insurance with the
premiums paid in advance, issued by and binding upon some solvent
insurance company, insuring the Building against loss or damage by
fire, explosion, or other hazards and contingencies. Landlord shall
not be obligated, however, to insure any personal property
(including, but not limited to any furniture machinery goods or
supplies) of Tenant or which Tenant may have in the Leased Premises
or any fixtures installed by or paid for by Tenant upon or within the
Leased Premises or any improvements which Tenant may construct or
install on the Leased Premises or any signs identifying Tenant's
business located on the exterior of the Building.
20. WAIVER OF SUBROGATION: To the extent that Landlord or Tenant
receives casualty insurance proceeds, such recipient hereby waives
and releases any and all rights, claims, demands and causes of action
such recipient may have against the other on account of any loss or
damage occasioned to such recipient or its businesses real and
personal properties, the Leased Premises, the Building, the Project,
or its contents arising from any risk or peril covered by any
insurance policy carried by either party. Inasmuch as the above
mutual waivers will preclude the assignment of any such claim by way
of subrogation (or otherwise) to an insurance company (or any other
person), each party hereto hereby agrees immediately to give to its
respective insurance companies written notice of the terms of such
mutual waivers and to have their respective insurance policies
properly endorsed, if necessary, to prevent the invalidation of such
insurance coverages by reason of such waivers. This provision shall
be cumulative of Paragraph 21 below.
21. HOLD HARMLESS: Landlord shall not be liable to Tenant, Tenant's
employees, agents, invitees, licensees or visitors, or to any other
person, for any injury to person or damage to property on or about
the Leased Premises or the Project caused by the negligence or
misconduct of Tenant, its agents, employees, invitees, or of any
other persons entering upon the Leased Premises or the Project under
express or implied invitation by Tenant. Tenant agrees to indemnify
and hold Landlord harmless from any and all loss, attorney's fees,
expenses, or claims arising out of any such damage or injury.
22. QUIET ENJOYMENT: Landlord warrants that it has full right to
execute and to perform this Lease and to grant the estate demised and
that Tenant, upon payment of the required Rent and performing the
covenants and agreements contained in this Lease, shall peaceably and
quietly have, hold, and enjoy the Leased Premises during the full
term of this Lease, including any extensions or renewals thereof.
23. LANDLORD'S RIGHT OF ENTRY: Landlord shall have the right, at
all reasonable hours, to enter the Leased Premises for the following
reasons: Inspection, cleaning or making repairs, making such
alterations or additions as Landlord may deem necessary or desirable;
installation of utility lines servicing the Leased Premises or any
other space in the Building; determining Tenant's use of the Leased
Premises, or for determining if any act of default under this Lease
has occurred. Landlord shall give twenty-four (24) hours written
notice to Tenant prior to such entry, except in cases of emergency
when Landlord may enter the Leased Premises at any time and without
prior notice. During the period that is six (6) months prior to the
end of the Lease term, Landlord and Landlord's agents and
representatives shall have the right to enter the Leased Premises at
any reasonable time during business hours, without notice, for the
purpose of showing the Leased Premises and shall have the right to
erect on the Leased Premises a suitable sign indicating the Leased
Premises are available for lease. Tenant shall give written notice to
Landlord at least thirty (30) days prior to vacating the Leased
Premises and shall arrange to meet with Landlord for a joint
inspection of the Leased Premises prior to vacating. In the event of
Tenant's failure to give such notice or arrange such joint
inspection, Landlord's inspection at or after Tenant's vacating the
Leased Premises shall be conclusively deemed correct for purposes of
determining Tenant's responsibility for repairs and restoration.
24. ASSIGNMENT OF LANDLORD'S INTEREST IN LEASE: Landlord shall have
the right to transfer and assign, in whole or in part, its rights and
obligations with respect to the Project and premises that are the
subject of this Lease, including Tenant's security deposit. In such
event, Landlord shall be released from any further obligation under
this Lease and Tenant agrees to look solely to Landlord's successor
for the performance of such obligations.
25. [OMITTED]
26. DEFAULT BY TENANT: The following shall be events of default by
Tenant under this Lease:
(a) Tenant shall fail to pay when due any installment of Rent or
other payment required pursuant to this Lease;
(b) [OMMITTED]
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(c) Tenant shall fail to comply with any term, provision or
covenant of this Lease, other than the defaults listed in this
paragraph 26, and the failure is not cured within ten (10) days after
written notice thereof to Tenant;
(d) Tenant shall file a petition or be adjudged a debtor or
bankrupt or insolvent under the National Bankruptcy Code, as amended,
or any similar law or statute of the United States or any state; or a
receiver or trustee shall be appointed for all or substantially all
of the assets of Tenant; or Tenant shall make a transfer in fraud of
creditors or shall make an assignment for the benefit of creditors;
(e) Tenant shall do or permit to be done any act which results
in a lien being filed against the Leased Premises.
27. REMEDIES FOR TENANT'S DEFAULT: Upon the occurrence of any event of
default set forth in this Lease, Landlord shall have the option to pursue
any one or more of the following remedies without any prior notice or
demand;
(a) Landlord may terminate this Lease, in which event Tenant
shall immediately surrender the Leased Premises to Landlord, and if
Tenant fails to do so, Landlord may, without prejudice to any other
remedy which it may have, enter upon and take possession of the
Leased Premises, and expel or remove Tenant and any other person who
may be occupying all or any part of the Leased Premises. Landlord
shall not be liable for prosecution or any claim for damages as a
result of such actions. Tenant agrees to pay on demand the amount of
all losses, costs, expenses, deficiencies, and damages, including,
without limitation, reconfiguration expenses, rental concessions and
other inducements to new tenants, advertising expenses and broker's
commissions, which Landlord may incur or suffer by reason of Tenant's
default or the termination of the Lease under this subparagraph,
whether through inability to relet the Leased Premises on
satisfactory terms or otherwise. Tenant acknowledges that its
obligation to pay Base Rent and all additional Rent hereunder is not
only compensation for use of the Leased Premises but also
compensation for sums already expended and/or being expended by
Landlord with respect to its obligations hereunder and with respect
to the Leased Premises, and Tenant acknowledges that Tenant's default
in timely payment of all sums due hereunder shall constitute
significant financial loss to Landlord. Tenant further acknowledges
that any failure to pay any sum due hereunder shall evidence Tenant's
inability to meet its debts as they become due. In such event, in
addition to Landlord's other remedies hereunder, Landlord shall be
entitled to accelerate all Base Rental remaining unpaid hereunder,
the entirety of which shall, at the option of Landlord be immediately
due and payable.
(b) Landlord may enter upon and take possession of the Leased
Premises and expel or remove Tenant and any other person who may be
occupying all or any part of the Leased Premises (without being
liable for prosecution or any claim for damages therefor) and relet
the Leased Premises on behalf of Tenant and receive directly the rent
of the reletting. Tenant agrees to pay Landlord on demand any
deficiency that may arise by reason of any reletting of the Leased
Premises and to reimburse Landlord on demand for any losses, costs,
and expenses, including without limitation, reconfiguration expenses,
rental concessions and other inducements to new tenants, advertising
costs or broker's commissions, which Landlord may incur or suffer as
a result of Tenant's default or in reletting the Leased Premises.
Tenant further agrees to reimburse Landlord for any expenditures made
by it for remodeling or repairs necessary in order to relet the
Leased Premises. In the event Landlord is successful in reletting the
Leased Premises at a rental in excess of that agreed to be paid by
Tenant pursuant to this Lease, Landlord and Tenant agree that Tenant
shall not be entitled, under any circumstances, to such excess
rental, and Tenant does hereby specifically waive any claim to such
excess rental.
(c) Landlord may enter upon the Leased Premises (without being
liable for prosecution or any claim for damages therefor) and do
whatever Tenant is obligated to do under the terms of this Lease.
Tenant agrees to reimburse Landlord on demand for any losses, costs
and expenses which Landlord may incur in effecting compliance with
Tenant's obligations under this Lease. Tenant further agrees that
Landlord shall not be liable for any damages resulting to Tenant from
effecting compliance with Tenant's obligations under this
subparagraph, whether caused by the negligence of Landlord or
otherwise.
(d) Landlord may pursue any remedy provided at law or in equity.
(e) Landlord shall have no duty to relet the Premises, and the
failure of Landlord to do so shall not release or affect Tenant's
liability for Rentals and other charges due hereunder or for damages.
(f) No re-entry or reletting of the Premises or any filing or
service of an unlawful detainer action or similar action shall be
construed as an election by Landlord to terminate Tenant's right to
possession under this Lease unless a written notice of such intention
is given by Landlord to Tenant. Notwithstanding any such reletting
without termination. Landlord may at any time thereafter elect to
terminate this Lease and Tenant's right to possession hereunder.
28. TERMINATION OF OPTIONS: If there exist any options or special rights
which Landlord may have granted Tenant under this Lease including, but not
limited to, options or rights regarding extensions of the Lease term,
expansion of the Leased Premises, or acquisition of any other interest in
the Leased Premises or the Building, then all such options and rights are
independent of the leasehold estate hereby granted to Tenant by Landlord.
Landlord and Tenant agree and acknowledge that the negotiated consideration
for any such options or special rights is Tenant's entry into this Lease and
that no portion of any sums due and payable by Tenant to Landlord hereunder
is attributable thereto. In addition to, and not in lieu of, the above
remedies of Landlord for Tenant's default, any and all such options or
special rights shall be automatically terminated upon the occurrence of the
following events:
(a) Tenant shall have failed to pay when due any installment of
Rent or other sums payable under this Lease for any three (3)
consecutive months during the Lease term or any renewal or extension
thereof, or for any five (5) months during the Lease term or any
renewal or extension thereof, unless said defaults are cured by
Tenant; or
(b) Tenant shall have received two (2) or more notices of
default under Paragraph 26(c) above with respect to any other
covenant of this Lease, unless such default(s) is/are cured; or
(c) Tenant shall have committed or suffered to exist any other
event of default described under Paragraph 26 above, unless such
default is cured by Tenant.
29. WAIVER OF DEFAULT OR REMEDY: Failure of Landlord to declare a default
immediately upon its occurrence, or delay in taking any action in
connection with an event of default, shall not be waiver of the
default. Landlord shall have the right to declare the default at any
time and take such action as is lawful or authorized under this
Lease. Pursuit of any one or more of the remedies set forth in
Paragraphs 27 or 28 above shall not preclude pursuit of any one or
more of the other remedies provided therein or elsewhere in this
Lease provided by law, nor shall pursuit of any remedy be a
forfeiture or waiver of any Rent or damages accruing to Landlord by
reason of the violation of any of the terms of this Lease. Failure by
Landlord to enforce one
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or more of its remedies upon an event of default shall not be
construed as a waiver of the default or of any other violation or
breach of any of the terms contained In this Lease.
30. ATTORNEY'S FEES: In the event any litigation arises hereunder,
it is specifically stipulated that this Lease shall be interpreted
and construed according to the laws of the State in which the Leased
Premises are located. Further, the prevailing party in any such
litigation between the parties shall be entitled to recover, as a
part of its judgement, reasonable attorney's fees.
31. HOLDING OVER: Tenant will, at the termination of this Lease by
lapse of time or otherwise, surrender immediate possession to
Landlord. If Landlord agrees in writing that Tenant may hold over
after the expiration or termination of this Lease and if the parties
do not otherwise agree, the hold over tenancy shall be subject to
termination by Landlord at any time upon not less than five (5) days
advance written notice, or by Tenant at any time upon not less than
thirty (30) days advance written notice. Further, all of the terms
and provisions of this Lease shall be applicable during the hold over
period, except that Tenant shall pay Landlord from time to time upon
demand, as Base Rent for the period of any hold over, an amount equal
to one and one-half times (1-1/2) the Base Rent in effect on the
termination date, computed on a daily basis for each day of the hold
over period, plus all additional rental and other sums due hereunder.
If Tenant shall fail immediately to surrender possession of the
Leased Premises to Landlord upon termination of this Lease, by lapse
of time or otherwise, and Landlord has not agreed to such continued
possession as above provided, then, until Landlord can dispossess
Tenant under the terms hereof or otherwise, Tenant shall pay Landlord
from time to time upon demand, as Base Rent for the period of any
such holdover, an amount equal to twice the Base Rent in effect on
the termination date, computed on a daily basis for each day of the
hold over period, plus all additional rental and other sums due
hereunder. No holding over by Tenant, whether with or without consent
of Landlord, shall operate to extend this Lease except as otherwise
expressly agreed by the parties. The preceding provisions of this
Paragraph shall not be construed as Landlord's consent for Tenant to
hold over.
32. RIGHTS OF MORTGAGEE: Tenant accepts this Lease subject and
subordinate to any recorded mortgage, deed of trust or other lien
presently existing or hereafter to exist with respect to the Leased
Premises. Landlord is hereby irrevocably vested with full power and
authority to subordinate Tenant's interest under this Lease to any
mortgage, deed of trust or other lien hereafter placed on the Leased
Premises, and Tenant agrees upon demand to execute such additional
instruments subordinating this Lease as Landlord or the holder of any
such mortgage, deed of trust, or lien my require. If the interests of
Landlord under this Lease shall be transferred by reason of
foreclosure or other proceedings for enforcement of any mortgage on
the Leased Premises. Tenant shall be bound to the transferee
(sometimes called the "Purchaser") under the terms and conditions of
this lease for the balance of the remaining Lease term, including any
extensions or renewals, with the same force and effect as if the
Purchaser were Landlord under this Lease. Tenant further agrees to
attorn to the Purchaser, including the mortgagee under any such
mortgage if it be the Purchaser, as its Landlord. Such attornment
shall be effective without the execution of any further instruments
upon the Purchaser succeeding to the interest of Landlord under this
Lease. The respective rights and obligations of Tenant and the
Purchaser upon the attornment, to the extent of the then remaining
balance of the term of this Lease, and any extensions and renewals,
shall be and are the same as those set forth in this Lease. Each such
holder of any mortgage, deed of trust, or lien, and each such
Purchaser, shall be a third-party beneficiary of the provisions of
this Paragraph.
33. ESTOPPEL CERTIFICATES: Tenant agrees to furnish within ten (10)
days, from time to time, upon request of Landlord or Landlord's
mortgagee, a statement certifying that Tenant is in possession of the
Leased Premises; the Leased Premises are acceptable; the Lease is in
full force and effect; the Lease is unmodified; Tenant claims no
present charge, lien, or claim of offset against Rent; the Rent is
paid for the current month, but is not paid and will not be paid for
more than one month in advance; there is no existing default by
reason of some act or omission by Landlord; and such other matters as
may be reasonably required by Landlord or Landlord's mortgagee.
34. SUCCESSORS: This Lease shall be binding upon and inure to the
benefit of Landlord and Tenant and their respective heirs, personal
representatives, successors and assigns. It is hereby covenanted and
agreed that should Landlord's interest in the Leased Premises cease
to exist for any reason during the term of the Lease, then
notwithstanding the happening of such event this Lease shall
nevertheless remain unimpaired and in full force and effect and
Tenant hereunder agrees to attorn to the then owner of the Leased
Premises.
35. REAL ESTATE COMMISSION: Tenant represents and warrants that it
has dealt with no broker, agent, or other person in connection with
this transaction and that no other broker, agent, or other person
brought about this transaction other then Xxxxxx Corporate Services
and JSC Realty Services. Inc.; and Tenant agrees to indemnify and
hold Landlord harmless from and against any claims by any other
broker, agent, or other person claiming a commission or other form of
compensation by virtue of having dealt with Tenant with regard to
this leasing transaction. The provisions of this paragraph shall
survive the termination of this Lease.
36. EXPANSION: If during the term of this Lease, Tenant occupies,
under a new written Lease with Landlord, space of a size
substantially larger than the present Leased Premises within any
development owned by Landlord, this Lease shall be terminated upon
execution of the Lease for such substitute space. Notwithstanding the
above-stated, Tenant &hall remain obligated to pay for any Rents or
other sums due Landlord as a result of Tenant's tenancy hereunder,
and such obligation shall survive the termination of this Lease
pursuant to this Paragraph 36.
37. MECHANIC'S LIENS: Tenant shall have no authority, express or
implied, to create or place any lien or encumbrance of any kind or
nature whatsoever upon, or in any manner to bind, the interest of
Landlord in the Leased Premises or to charge the Rentals payable
hereunder for any claim in favor of any person dealing with Tenant,
including those who may furnish materials or perform labor for any
construction or repairs. Each such claim shall affect and each such
lien shall attach to, If at all, only the Leasehold interest granted
to Tenant by this Lease. Tenant covenants and agrees that it will pay
or cause to be paid all sums legally due and payable by it on account
of any labor performed or materials furnished in connection with any
work performed on the Leased Premises on which any lien is or can be
validly and legally asserted against its leasehold interest in the
Leased Premises or the Improvements thereon. Tenant further agrees to
save and hold Landlord harmless from any and all loss, cost, or
expense based on or arising out of asserted claims or liens against
the leasehold estate or against the right, title and interest of the
Landlord In the Leased Premises or under the terms of this Lease.
Under no circumstances shall Tenant be or hold itself out to be the
agent or representative of Landlord with respect to any alteration of
the Leased Premises whether or not consented to or approved by
Landlord hereunder.
38. ENTIRE AGREEMENT, AND LIMITATION OF WARRANTIES: It Is expressly
agreed by Tenant, as a material consideration for the execution of
this Lease, that this Lease is the entire agreement of the parties
and that there are and were no verbal representations, warranties,
understandings, stipulations, agreements, or promises pertaining to
this Lease not incorporated in this Lease. Landlord and Tenant
expressly agree that there are and shall be no implied warranties of
merchantability or fitness or of any other kind arising out of this
Lease and that Tenant's acceptance of the Leased Premises shall be
"as is". it Is likewise
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agreed that this Lease may not be altered, waived, amended, or
extended except by an instrument in writing signed by both Landlord
and Tenant. Not in limitation upon the foregoing, Landlord agrees
that to the extent assignable, all warranties, if any shall exist,
from contractors or suppliers with respect to the improvements to the
Leased Premises hereunder are hereby assigned to Tenant.
39. MISCELLANEOUS:
(a) Words of any gender used in this Lease shall be held and
construed to include any other gender; and words in the singular
number shall be held to include the plural, unless the context
otherwise requires.
(b) Each party agrees to furnish to the other, promptly upon
demand, a corporate resolution, proof of due authorization by
partners, or other appropriate documentation evidencing the due
authorization and power of such party to enter into this Lease.
(c) The captions inserted in this Lease are for convenience
only and in no way define, limit, or otherwise describe the scope or
intent of this Lease or any provision hereof, or in any way affect
the interpretation of this Lease.
(d) If any clause or provision of this Lease is illegal,
invalid, or unenforceable under present or future laws effective
during the term of this Lease, then and in that event, it is the
intention of the parties hereto that the remainder of this Lease
shall not be affected thereby; and it is also the intention of the
parties to this Lease that in lieu of each clause or provision of
this Lease that is illegal, invalid, or unenforceable there be added
as a part of this Lease a clause as similar in terms to such illegal,
invalid, or unenforceable clause or provision as may be possible and
be legal, valid, and enforceable.
(e) Because the Leased Premises are on the open market and are
presently being shown, this Lease shall be treated as an offer to
lease only. Unless and until this Lease is accepted by Landlord and
Tenant in writing and a fully executed copy delivered to both
parties, this offer is subject to withdrawal or non-acceptance by
Landlord and the Leased Premises may be leased to another party or
used for another purpose by Landlord without notice.
(f) All references in this Lease to "the date hereof" or
similar references shall be deemed to refer to the last date, in
point of time, on which all parties hereto have executed this Lease.
(g) If the Commencement Date shall be determined under
Paragraphs 4(b) or (c) of this Lease, Landlord and Tenant shall enter
into an agreement in recordable form setting forth the Commencement
Date and Termination Date of the Lease term.
(h) In the event that Tenant shall fail to perform any duty
or obligation hereunder, whether maintenance, repair or
replacement of the Leased Premises, maintenance of insurance, or
otherwise, then Landlord may, but shall in no event be obligated to,
without notice of any kind, take such actions as Landlord deems
necessary or appropriate to remedy such Tenant failure, and any sums
expended by Landlord and fair and just compensation for the time
and effort of Landlord shall be deemed additional Rental hereunder
due and payable by Tenant on demand.
(i) If Tenant shall fail to pay, when the same is due and
payable, any Rent, any additional Rent, or any other sum due
hereunder, such unpaid amount shall bear interest from the due date
thereof to the date of payment at the highest non-usurious rate
permitted by applicable law.
(j) Landlord does not in any way or for any purpose become a
partner of Tenant in the conduct of its business or otherwise, nor a
member of a joint venture with Tenant.
(k) Tenant shall not record this Lease without the prior
written consent of Landlord. However, upon the request of either
party hereto, the other party shall join in the execution of a
memorandum or so-called "short form" of this Lease for the purposes
of recordation.
(l) Time is of the essence in the performance of all the
covenants, conditions, and agreements contained in this Lease.
(m) Any duty, obligation, or debt and any right or remedy
arising hereunder and not otherwise consummated and/or extinguished
by the express terms hereof at or as of the time of termination of
this Lease, whether at the end of the term hereof or otherwise, shall
survive such termination as continuing duties, obligations, and debts
of the obligated party to the other or continuing rights and remedies
of the benefitted party against the other.
(n) This Agreement may be executed in one or more counterparts,
each of which counterparts shall for all purposes be deemed to be an
original; but all such counterparts together shall constitute but one
instrument.
(o) Attached hereto, marked Exhibit "A" through Exhibit "D",
are certain exhibits to this Lease all (of which are hereby
incorporated herein by reference.
(p) Tenant shall be allowed early occupancy of the Leased
Premises upon substantial completion of the Leasehold improvements as
described in Exhibit "B" and Tenant obtaining a Certificate of
Occupancy from the City of Farmers Branch. All terms and conditions
of the Lease shall be in full force and effect upon Tenant taking
occupancy with the exception of Base rent. Base Rent shall begin on
the Commencement Date as stated in Paragraph 4.
40. NOTICE:
(a) All Rent and other payments required to be made by Tenant
shall be payable to Landlord at the address set forth below or any
other address Landlord may specify from time to time by written
notice delivered to Tenant.
(b) All payments, if any, required to be made by Landlord to
Tenant shall be payable to Tenant at the address set forth below or
at any other address within the United States as Tenant may specify
from time to time by written notice.
(c) Any notice or document required or permitted to be
delivered by this Lease shall be deemed to be delivered (whether or
not actually received) when deposited in the United States Mail,
postage prepaid, certified mail, or return receipt requested,
addressed to the parties at the respective addresses set out below or
such other address as hereinafter specified by notice given in
accordance with this paragraph.
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LANDLORD: TENANT:
TDC Dallas Partners No. 2, Ltd. One Up Corporation
621 Via Alondra 00000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000 Farmers Xxxxxx, XX 00000
EXECUTED by Landlord and Tenant on the date below stated as their respective
Dates of Execution.
LANDLORD: TENANT:
TDC Dallas Partners No. 2, Ltd. One Up Corporation
By: /s/ XXXX X. XXXXXXXX By: /s/ H. XXXXX XXXXXXXXX
------------------------- -----------------------------
Xxxx X. Xxxxxxxx H. Xxxxx Xxxxxxxxx
Its: Vice President Its: Director/Administrator
------------------------- -----------------------------
TOLD Corporations
General Partner
Date: 4/4/97 Date: 4/3/97
------------------------ ----------------------------
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EXHIBIT "A"
LEGAL DESCRIPTION
PROPERTY
BEING a tract of land situated in the Xxxxxx Xxxxxx Survey, Abstract
No. 733, in Dallas County, Texas and also being part of Block 2 of Valley
View Addition, Fourth Installment, and Addition to the City of Farmers
Branch as recorded in Volume 74187, Page 0415 of Deed Records of Dallas
County, Texas, and being more particularly described as follows:
BEGINNING at an iron pin for corner at the intersection of the North line
of Springlake Road (a 60 foot Right-of-way); with the West line of
Interstate Highway 35-E (a variable width Right-of-way);
THENCE North 89 degrees, 48 minutes and 00 seconds West, 320.12 feet along
the said North line of Springlake Road to an iron pin for corner;
THENCE North 0 degrees, 30 minutes and 00 seconds East, 140.00 feet to an
iron pin for corner;
THENCE North 89 degrees, 48 minutes and 00 seconds West, 75.00 feet to an
iron pin for corner;
THENCE North 9 degrees, 58 minutes and 46 seconds West, 313.81 feet to an
iron pin for corner;
THENCE North 71 degrees, 46 minutes and 00 seconds East, 549.80 feet to an
iron pin for corner on the said West line of Interstate Highway 35-E, said
point also being in a curve to the right running in a Southerly direction
and having a central angle, of 6 degrees, 30 minutes and 10 seconds a
radius of 937.93 feet and a tangent bearing South 0 degrees, 49 minutes and
15 seconds West;
THENCE along said curve, and said West line of Interstate Highway 35-E,
106.45 feet to an iron pin for corner;
THENCE South 7 degrees, 19 minutes and 25 seconds West, 520.58 feet
continuing along the said West line of Interstate Highway 35-E to the POINT
OF BEGINNING AND CONTAINING 5.327 acres (232,026 square feet) of land.
Also known as Valley View Tech Center, III, a Resubdivision of Part of
Block 2 Valley View Place Addition Fourth Installment, An addition to
Farmers Branch, Texas recorded in Volume 84192, Page 73, amended in
Volume 84226, Page 2921, Map Records, Dallas County, Texas.
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EXHIBIT "B"
LEASEHOLD IMPROVEMENTS
1. There are no leasehold improvements to be provided by the Landlord. Tenant
accepts the Leased Premises on an "as is" "where is" basis.
2. Tenant is responsible for making application for a Certificate of Occupancy
for the premises and paying all fees associated with such application.
[MAP]
[BLUEPRINT]
No warranty or representative, expressed or implied, is made as to the
accuracy of information contained herein and same is submitted subject to
errors, omissions, change of price or other conditions, or withdrawal
without notice. Dimensions shown on drawing are approximate. Purchaser
should verify measurements if and where room dimensions are critical.
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EXHIBIT "C"
RULES AND REGULATIONS
The following Rules and Regulations are prescribed by Landlord in
order to provide and maintain, to the best of Landlord's ability, orderly,
clean and desirable Leased Premises, building and parking facilities for the
tenants therein and to regulate conduct in and use of Leased Premises, the
building and parking facilities in such a manner as to minimize interference by
others in the proper use of Leased Premises by Tenant. In the following Rules
and Regulations, all references to Tenant include not only the Tenant, but,
also, Tenant's agents, servants, employees, invitees, licensees, visitors,
assignees, and/or sublessees:
1. Tenant shall not block or obstruct any of the entries, passages, doors,
hallways, or stairways of building or parking area, or place, empty, or throw
any rubbish, litter, trash, or material of any nature into such areas, or
permit such areas to be used at any time except for ingress or egress of
Tenants.
2. Lardlord will not be responsible for lost or stolen personal property,
equipment, money, or any article taken from the Leased Premises, building, or
parking facilities regardless of how or when loss occurs.
3. The plumbing facilities shall not be used for any other purpose than that
for which they are constructed, and no foreign substance of any kind shall be
placed therein, and the expense of any breakage, stoppage, or damage resulting
from a violation of this provision shall be borne by Tenant.
4. Tenant shall permit Landlord, during the six (6) months prior to the
termination of this lease to show Leased Premises during business or
non-business hours to prospective lessees and to advertise Leased Premises for
rent.
5. Any additional keys required by Tenant during the term of this lease shall
be requested from Landlord and shall be paid for by Tenant upon delivery of
keys to premises. In the event new locks are requested by Tenant, then all
costs associated with such request (including hardware, installation and keys)
shall be paid by Tenant.
6. The common parking facilities are available for use by any and all Tenants.
Landlord reserves the right to assign or allocate parking in the event of
conflicts, abuse or improper use of these common parking facilities. It is
generally understood that any Tenant should utilize only those parking spaces
immediately adjacent to that Tenant's specific Leased Premises. Tenant
acknowledges that its pro rata share of the parking during normal business
hours is 40 parking spaces (twenty six (26) parking spaces in the front of the
Leased Premises and fourteen (14) parking spaces in the rear of the Leased
Premises) Tenant agrees not to violate it's pro rata share of the parking.
Proper use of the common parking facilities is deemed to be that use which
is occasioned by the normal in and out traffic required by the Tenant, in the
normal course of the Tenant's business operations.
Vehicles that are abandoned, disabled, have expired registration stickers,
obstructing any means of ingress or egress to any Leased Premises, or in any
way a general nuisance or hazard are subject to removal, without notice by
Landlord's designated wrecker and towing service. All costs associated with
such removal shall be at the Tenant's/Vehicle Owner's expense.
7. Tenant shall not use the building, Leased Premises, or parking
facilities for housing, lodging, or sleeping purposes without express consent
of Landlord in writing.
8. No birds or animals shall be brought into or kept in or about the
Premises or any other part of the Building.
9. No sign, placard, picture, advertisement, name or notice shall be
inscribed, displayed or printed or affixed on or to any part of the outside of
the Building without the written consent of Landlord. Landlord shall have the
right to remove any such sign, placard, picture, advertisement, name or notice
without notice to, and at the expense of Tenant.
Tenant shall not place anything, or allow anything to be placed, near the
glass of any window, door, partition, or wall which may appear unsightly from
outside the Leased Premises; Tenant shall not, without prior written consent of
Landlord, cause or otherwise sunscreen any window.
10. Tenant shall not use or keep in the Leased Premises or in the Building,
any kerosene, gasoline or inflammable or combustible fluid or material, or
use any method of heating or air conditioning other than that supplied by
Landlord.
11. Tenant shall not use, keep or permit to be used or kept, any foul or
noxious gas or substance in the Leased Premises, or permit or suffer the
Leased Premises to be occupied or used in a manner offensive or
objectionable to the Landlord or other occupant of the Building by reason of
notice, odors, and/or vibrations, or interfere in any way with other tenants
or those having business therein, nor shall any animals or birds brought in
or kept in or about the Leased Premises or the Building.
12. The following acts shall not be allowed or suffered to be done or conditions
to exist upon the Leased Premises or any part thereof:
a. Any violation of any federal, state, or municipal statute or ordinance
or any regulation, order, or directive, of a governmental agency, as
such statutes, ordinances, regulation, orders, or directives now exist
or may hereafter provide, concerning the use and safety of the Leased
Premises.
b. Any violation of any certificate of occupancy covering or affecting the
use of the Leased Premises or any part hereof.
c. Any public or private nuisance.
d. The display or distribution of drug paraphernalia, or sexual
paraphernalia, except as the same may be legally dispensed by a
physician or surgeon, dentist or pharmacist, duly licensed to practice
such profession.
e. The sale or dispensing of alcoholic beverages, except as the same may be
incidental to the permitted use of the Leased Premises, as provided in
the Lease Agreement.
f. The sale or dispensing of alcoholic beverages on all other portions of
the real property conveyed hereunder, except as the same shall be only
incidental to any business, including restaurants, hotels or
delicatessens which may be hereafter located on said other portions of
the real property hereby conveyed.
g. The showing, displaying, viewing, renting or selling of movie films
which would be classified rated as "X-rated" under present standards or
criteria for such classification and rating; and provided, that insofar
as movie films, whether present or future are shown, displayed, viewed,
rented, or sold upon the said real property, preference shall be given
to those films which meet the standards and criteria presently existing
for classification and rating as "G rated" or "PG rated".
h. Gambling.
i. The establishment or maintenance of a bawdy house, bar, nightclub or
tavern.
j. Any other act or condition which shall be lewd, obscene or licentious.
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EXHIBIT "D"
HAZARDOUS SUBSTANCES, TENANT'S COMPLIANCE WITH APPLICABLE REQUIREMENTS
AND COMPLIANCE WITH LAW
1.0 Hazardous Substances
(a) Reportable Uses Require Consent. The term "Hazardous Substance" as
used in this Lease shall mean any product, substance, chemical, material or
waste whose presence, nature, quantity and/or intensity of existence, use,
manufacture, disposal, transportation, spill, release or effect, either by
itself or in combination with other materials expected to be on the Leased
Premises, is either; (i) potentially injurious to the public health, safety or
welfare, the environment, or the Leased Premises; (ii) regulated or monitored
by any governmental authority; or (iii) a basis for potential liability of
Landlord to any governmental agency or third party under any applicable statute
or common law theory. Hazardous Substance shall include, but not be limited to,
hydrocarbons, petroleum, gasoline, crude oil or any products or by products
thereof, Tenant shall not engage in any activity in or about the Leased
Premises which constitutes a Reportable Use (as hereinafter defined) of
Hazardous Substances without the express prior written consent of Landlord and
compliance in a timely manner (at Tenant's sole cost and expense) with all
Applicable Requirements (as defined in Paragraph 2.0). "Reportable Use" shall
mean (i) the installation or use of any above or below ground storage tank,
(ii) the generation, possession, storage, use, transportation, or disposal of
Hazardous Substance that requires a permit from, or with respect to which a
report, notice, registration or business plan is required to be filed with any
governmental authority, and (iii) the presence in, on or about the Leased
Premises of a Hazardous Substance with respect to which any Applicable Laws
require that a notice be given to persons entering or occupying the Leased
Premises or neighboring properties. Notwithstanding the foregoing, Tenant may,
without Landlord's prior consent, but upon notice to Landlord and in compliance
with all Applicable Requirements, use any ordinary and customary materials
reasonably required to be used by Tenant in the normal course of the permitted
use (as specified in paragraph 11), so long as such use is not a
Reportable Use and does not expose the Leased Premises or neighboring
properties to any meaningful risk of contamination or damage or expose Landlord
to any liability therefor. In addition, Landlord may (but without any
obligation to do so) condition its consent to any Reportable Use of any
Hazardous Substance by Tenant upon Tenant's giving Landlord such additional
assurances as Landlord, in its reasonable discretion, deems necessary to protect
itself, the public, the Leased Premises and the environment against damage,
contamination or injury and/or liability therefor, including but not limited to
the installation (and, at Landlord's option, removal on or before Lease
expiration or earlier termination) of reasonably necessary protective
modifications to the Leased Premises (such as concrete encasements) and/or the
deposit of an additional Security Deposit under Paragraph 5 hereof.
(b) Duty to inform Lessor, if Tenant knows or had reasonable cause to
believe, that a Hazardous Substance has come to be located in, on, under or
about the Leased Premises or the Building, other than as previously consented
to by Landlord, Tenant shall immediately give Landlord written notice thereof,
together with a copy of any statement, report, notice, registration,
application permit, business plan, license, claim, action or proceeding given
to or received from, any governmental authority or private party concerning the
presence, spill, release, discharge of, or exposure to, such Hazardous
Substance including but not limited to all such documents as may be involved in
any Reportable Use involving the Leased Premises, Tenant shall not cause or
permit any Hazardous Substance to be spilled or released in, on, or under or
about the Leased Premises (including, without limitation, through the plumbing
or sanitary sewer system).
(c) Indemnification. Tenant shall indemnify, protect, defend and hold
Landlord, its agents, employees, lenders and ground Landlord, if any and the
Leased Premises, harmless from and against any and all damages, liabilities,
judgements, costs claims, liens, expenses, penalties, loss of permits and
attorneys' and consultants' fees arising out of or involving any Hazardous
Substance brought onto the Leased Premises by or for Tenant or by anyone under
Tenant's control. Tenant's obligations under this Paragraph 1.0(c) shall
include, but not be limited to, the effects of any contamination or injury to
person, property or the environment created or suffered by Tenant, and the cost
of investigation (including consultant's and attorneys' fees and testing),
removal, remediation, restoration and/or abatement thereof, or of any
contamination therein involved and shall survive the expiration or earlier
termination of this Lease. No termination, cancellation or release agreement
entered into by Landlord and Tenant shall release Tenant from its obligations
under this Lease with respect to Hazardous Substances, unless specifically so
agreed by Landlord in writing at the time of such agreement.
2.0 Tenants' Compliance with Requirements. Tenant shall, at Landlord's
sole cost and expense, fully, diligently and in a timely manner, comply with
all "Applicable Requirements", which term is used in this Lease to mean all
laws, rules, regulations, ordinances, directives, covenants, easements and
restrictions of record, permits, the requirements of any applicable fire
insurance underwriter or rating bureau and the recommendations of Landlord's
engineers and/or consultants, relating in any manner to the manner to the
Leased Premises (including but not limited to matters pertaining to (i)
industrial hygiene, (ii) environmental conditions on, in, under or about the
Leased Premises, including soil and groundwater conditions and (iii) the use,
generation, manufacture, production, installation, maintenance, removal,
transportation, storage, spill or release of any Hazardous Substance), now in
effect or which may hereafter come into effect, Tenant shall, within five (5)
days after receipt of Landlord's written request, provide Landlord with copies
of all documents and information, including but not limited to permits,
registration, manifests, applications, reports and certificates, evidencing
Tenant's compliance with any Applicable Requirements specified by Landlord, and
shall immediately upon receipt, notify Landlord in writing (with copies of any
documents involved) of any threatened or actual claim, notice, citation,
warning, compliant or report pertaining to or involving failure by Tenant or
the Leased Premises to comply with any Applicable Requirements. Notwithstanding
anything to the contrary stated above, Tenant shall not be liable hereunder for
anything relating to the conditions that preexisted before Tenant's occupancy
of the Premises in January, 1995 under the sublease with CTX International; nor
with any conditions not caused by tenant.
3.0 Inspection; Compliance with Law. Tenant, Landlord's agents,
employees, contractors and designated representative, and the holders of any
mortgages, deeds of trust or ground leases on the Leased Premises ("Lenders")
shall have the right to enter the Leased Premises at any time in the case of an
emergency, and otherwise at reasonable times, for the purpose of inspecting the
condition of the Leased Premises and for verifying compliance by Tenant with
this Lease and all Applicable Requirements (as defined in Paragraph 2.0) and
Landlord shall be entitled to employ experts and/or consultants in connection
therewith to advise Landlord with respect to Tenant's activities, including but
not limited to Tenant's installation, operation, use, monitoring, maintenance,
or removal of any Hazardous Substance on or from the Leased Premises. The costs
and expenses of any such inspections shall be paid by the party requesting
same, unless a Default or Breach of this Lease by the inspection is requested
or ordered by a governmental authority as the result of any such existing or
imminent violation or contamination, in such case, Tenant shall upon request
reimburse Landlord or Landlord's Lender, as the case may be, for the costs and
expenses of such inspections.
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