STANDARD LEASE AGREEMENT 13,430 square feet
Xxxxxxxx Xxxx Company
Dallas Industrial 00-Xxx XX Xxxxxxxx Xxxx
Xxxxxx, XX 00000
Code: 214211-24
Lease Agreement
THIS LEASE AGREEMENT, made and entered into by and between XXXX-XXXXXXXX
22-27, LIMITED PARTNERSHIP hereinafter referred as "Landlord", and WEB
TECHNOLOGY, INC. hereinafter referred to as "Tenant";
W I T N E S S E T H:
1. PREMISES AND TERM. In consideration of the obligation of Tenant to pay
rent as herein provided, and in consideration of the other terms, provisions and
covenants hereof, Landlord hereby demises and leases to Tenant, and Tenant
hereby takes from Landlord certain premises situated within the County of
Dallas, State of Texas, more particularly described on EXHIBIT "A" attached
hereto and incorporated herein by reference, together with all rights,
privileges, easements, appurtenances, and amenities belonging to or in any way
pertaining to the premises. If the premises consist of the entire leaseable area
of the building shown on EXHIBIT "A", then the premises include such entire
building with all land and improvements shown on EXHIBIT "A" (such entire
building, land and improvements being called the "Project").
TO HAVE AND TO HOLD the same for a term commencing on the "commencement
date" as hereinafter defined, and ending 60 months thereafter, provided,
however, that, in the event the "commencement date" is a date other than the
first day of a calendar month, said term shall extend for said number of months
in addition to the remainder of the calendar month following the "commencement
date".
A. The "commencement date" shall be ___________________________________.
Tenant acknowledges that it has inspected and accepts the premises, and
specifically the buildings and improvements comprising the same, in their
present condition as suitable for the purpose for which the premises are leased.
Taking of possession by Tenant shall be deemed conclusively to establish that
said buildings and other improvements are in good and satisfactory condition as
of when possession was taken. Tenant further acknowledges that no
representations as to the repair of the premises, nor promises to alter, remodel
or improve the premises have been made by Landlord, unless such are expressly
set forth in this lease. If this lease is executed before the premises become
vacant or otherwise available and ready for occupancy, or if any present tenant
or occupant of the premises holds over, and Landlord cannot acquire possession
of the premises prior to said "commencement date," Landlord shall not be deemed
to be in default hereunder, and Tenant agrees to accept possession of the
premises at such time as Landlord is able to tender the same, which date shall
thenceforth be deemed the "commencement date"; and Landlord hereby waives
payment of rent covering any period prior to the tendering of possession to
Tenant hereunder. After the commencement date Tenant shall, upon demand, execute
and deliver to Landlord a letter of acceptance of delivery of the premises.
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[Paragraph A Intentionally Deleted]
B. In the event this lease pertains to a building to be constructed, the
provisions of this subparagraph B shall apply in lieu of the provisions of
subparagraph A above and the "commencement date" shall be the date upon which
the buildings and other improvements erected and to be erected upon the premises
shall have been substantially completed in accordance with the plan and
specifications described on Exhibit "B" attached hereto and incorporated herein
by reference. Delays of any nature whatsoever attributable to the acts or
omissions of Tenant or its employees, agents or contractors, shall not be cause
for delay of the commencement date. Landlord shall notify Tenant in writing as
soon as Landlord deems said buildings and other improvements to be completed and
ready for occupancy as aforesaid. In the event that said buildings and other
improvements have not in fact been substantially completed as aforesaid, Tenant
shall notify Landlord in writing of its objections. Landlord shall have a
reasonable time after delivery of such notice in which to take such corrective
action as may be necessary, and shall notify Tenant in writing as soon as it
deems such corrective action has been completed so that said buildings and other
improvements are completed and ready for occupancy. Taking of possession by
Tenant shall be deemed conclusively to establish that said buildings and other
improvements have been completed in accordance with the plans and specifications
and that the premises are in good and satisfactory condition, as of when
possession was so taken. Tenant acknowledges that no representations as to the
repair of the premises have been made by Landlord, unless such are expressly set
forth in this lease. After such "commencement date" Tenant shall, upon demand,
execute and deliver to Landlord a letter of acceptance of delivery of the
premises. In the event of any dispute as to substantial completion or work
performed or required to be performed by Landlord, the certificate of Landlord's
architect or general contractor shall be conclusive,
2. BASE RENT AND SECURITY DEPOSIT.
A. Tenant agrees to pay to Landlord rent for the premises, in advance,
without demand, deduction or set off, for the entire term hereof at the rate of
See Special Provision 22a Dollars ($ *? ) per month. One such monthly
installment plus other monthly charges as set forth in paragraph 2C below shall
be due and payable on the date hereof and a like monthly installment shall be
due and payable on or before the first day of each calendar month succeeding the
commencement date recited above during the hereby demised term, except that the
rental payment for any fractional calendar month at the commencement or end of
the lease period shall be prorated.
B. In addition Tenant agrees to deposit with Landlord on the date hereof
the sum of Seven Thousand Five and 98/100 Dollars ($7,005.98), which sum shall
be held by Landlord, without obligation for interest, as security for the
performance of Tenant's covenants and obligations under this lease, it being
expressly understood and agreed that such deposit is not an advance rental
deposit or a measure of Landlord's damages in case of Tenant's default. 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 rent or other
payments due Landlord hereunder, and any other damage, injury, expense or
liability caused 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. Although the security deposit shall be deemed the property of
Landlord, any remaining balance of such deposit shall be returned by Landlord to
Tenant at such time after termination of this lease that all of Tenant's
obligations under this lease have been fulfilled. If, during the term of this
Lease, Landlord, in Landlord's sole opinion, judgment and discretion, deems
itself insecure as to the performance or prospect of performance by Tenant as to
any of Tenant's obligations pursuant to this Lease, Tenant shall be required to
provide Landlord with an additional security deposit, in an amount and form
acceptable to Landlord. [Last sentence intentionally deleted.]
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C. Tenant agrees to pay its proportionate share of (i) Taxes payable by
Landlord pursuant to Paragraph 3(A) below, (ii) common utilities pursuant to
Paragraph 8 below, and (iii) Landlord's costs of carrying fire and extended
coverage insurance on the Project improvements pursuant to Paragraph 9(A) below.
During each month of the term of this lease, Tenant shall make a monthly escrow
deposit with Landlord, equal to 1/12 of its proportionate share of all such
items which will be due and payable for that particular year. Tenant authorizes
Landlord to use the funds deposited with Landlord under this Paragraph 2(C) to
pay such costs. The initial monthly escrow payments are based upon Tenant's
proportionate share of the estimated amounts for the year in question, and the
monthly escrow payments are subject to increase or decrease as determined by
Landlord to reflect an accurate monthly escrow of Tenant's estimated
proportionate share of all such items. The escrow payment account of Tenant
shall be reconciled annually. If the Tenant's total escrow payments are less
than Tenant's actual proportionate share of all such items, Tenant shall pay to
Landlord upon demand the difference; if the total escrow payments of Tenant are
more than Tenant's actual proportionate share of all such items, Landlord shall
retain such excess and credit it to Tenant's next accruing escrow account
payments. Tenant's "proportionate share" shall be a fraction, the numerator of
which shall be the number of leaseable square feet of floor space in the
premises and the denominator of which shall be the number of leasable square
feet of the entire building. The amount of the initial monthly escrow payments
are as follows:
(1) Base Rent as set forth in Paragraph 2(A).......................... $*
(2) Initial Tax Escrow Payment........................................ $559.58
(3) Initial Insurance Escrow Payment.................................. $11.19
(4) Initial Utility charge, Electric: $44.77, Water: $22.38........... $67.15
(5) Other, Landscaping: $201.45, Maintenance: $11.19.................. $212.64
(6) Administrative fee of 10% of items (2) through (5)................ $n/a
Monthly Payment Total................................ $*
3. TAXES.
A. Landlord agrees to pay before they become delinquent all taxes,
assessments and governmental charges of any kind and nature whatsoever including
without limitation assessments due to deed restrictions and/or owner
associations (collectively referred to herein as "Taxes") which accrue against
the Project or any part thereof.
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B. If at any time during the term of this lease, the present method of
taxation shall be changed so that in lieu of the whole or any part of any taxes,
assessments or governmental charges levied, assessed or imposed on real estate
and the improvements thereon, there shall be levied, assessed or imposed on
Landlord a capital levy or other tax directly on the rents received therefrom
and/or a franchise tax, assessment, levy or charge measured by or based, in
whole or in part, upon such rents for the present or any future building or
buildings on the premises, then all such taxes, assessments, levies or charges,
or the part, thereof so measured or based, shall be deemed to be included within
the term "Taxes" for the purposes hereof.
C. The Landlord shall have the right to employ a tax consulting firm to
attempt to assure a fair tax burden on the building and grounds within the
applicable taxing jurisdiction. Tenant shall pay to Landlord upon demand from
time to time, as additional rent, the amount of Tenant's proportionate share of
the cost of such service.
D. Any payment to be made pursuant to this Paragraph 3 with respect to the
calendar year in which this lease commences or terminates shall be prorated.
4. LANDLORD'S REPAIRS. Landlord shall at his expense maintain only the
roof, foundation and the structural soundness of the exterior walls of the
building in good repair, reasonable wear and tear excepted. Tenant shall repair
and pay for any damage caused by negligence of Tenant, or Tenant's employees,
agents or invitees, or caused by Tenant's default hereunder. The term "walls" as
used herein shall not include windows, glass or plate glass, doors, special
store fronts or office entries. Tenant shall immediately give Landlord written
notice of defect or need for repairs, after which Landlord shall have reasonable
opportunity to repair same or cure such defect. Landlord's liability with
respect to any defects, repairs or maintenance for which Landlord is responsible
under any of the provisions of this lease shall be limited to the cost of such
repairs or maintenance or the curing of such defect.
5. TENANT'S REPAIRS.
A. Tenant shall at its own cost and expense keep and maintain all parts of
the premises (except those for which Landlord is expressly responsible under the
terms of this lease) in good condition, promptly making all necessary repairs
and replacements, including but not limited to, windows, glass and plate glass,
doors, any special office entry, interior walls and finish work, floors and
floor covering, downspouts, gutters, heating and air conditioning systems, dock
boards, truck doors, dock bumpers, paving, plumbing work and fixtures, termite
and pest extermination, regular removal of trash and debris, regular mowing of
any grass, trimming, weed removal and general landscape maintenance, including
rail spur areas, keeping the parking areas, driveways, alleys and the whole of
the premises in a clean and sanitary condition, and maintaining any spur track
servicing the premises (Tenant agrees to sign a joint maintenance agreement with
the railroad company servicing the premises, if requested by the railroad
company). Tenant shall at its own cost and expense repaint exterior overhead
doors, canopies, entries, handrails, gutters, and other exposed parts of the
building which reasonably require periodic repainting to prevent deterioration
or to maintain aesthetic standards.
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B. The cost of maintenance and repair of any common party wall, (any wall,
divider, partition or any other structure separating the premises from any
adjacent premises occupied by other tenants) shall be shared equally by Tenant
and the tenant occupying adjacent premises. Tenant shall not damage any party
wall or disturb the integrity and support provided by any party wall and shall,
at its sole cost and expense, promptly repair any damage or injury to any party
wall caused by Tenant or its employees, agent or invitees.
C. In the event the premises constitute a portion of a multiple occupancy
building, Tenant and its employees, customers and licensees shall have the
exclusive right to use the parking areas designated on Exhibit "C", attached
hereto, if any, as may be designated by Landlord in writing, [previous sentence
intentionally omitted] subject to such reasonable rules and regulations as
Landlord may from time to time prescribe and subject to rights of ingress and
egress of other tenants. Landlord shall not be responsible for enforcing
Tenant's exclusive parking rights against any third parties. Parking spaces have
been provided in accordance with applicable local building codes and Tenant
agrees not to use more spaces than so provided.
D. Further, Landlord reserves the right to perform the paving and landscape
maintenance, exterior painting and common sewage line plumbing which are
otherwise Tenant's obligations under subparagraph A above, and Tenant shall, in
lieu of the obligations set forth under subparagraph A above with respect to
such items, be liable for its proportionate share (as defined in subparagraph
21B) of the cost and expense of the care for the grounds around the building,
including but not limited to, the mowing of grass, care of shrubs, general
landscaping, maintenance of parking areas, driveways and alleys, exterior
repainting and common sewage line plumbing; provided, however, that Landlord
shall have the right to require Tenant to pay such other reasonable proportion
of said mowing, shrub care and general landscaping costs and security services
costs as may be determined by Landlord in its sole discretion; and further
provided that if Tenant or any other particular tenant of the building can be
clearly identified as being responsible for obstructions or stoppage of the
common sanitary sewage line, then Tenant, if Tenant is responsible, or such
other responsible tenant, shall pay the entire cost thereof, upon demand, as
additional rent. Tenant shall pay when due its share, determined as aforesaid,
of such costs and expenses along with the other tenants of the building to
Landlord upon demand, as additional rent, for the amount of its share as
aforesaid of such costs and expenses in the event Landlord elects to perform or
cause to be performed such work.
E. In the event the premises constitute a portion of a multiple occupancy
building, Landlord shall have the right to coordinate any repairs and other
maintenance of any rail tracks serving or to serve the building, and if Tenant
uses such rail tracks, Tenant shall reimburse Landlord from time to time upon
demand, as additional rent, for a share of the costs of such repairs and
maintenance and any other sums specified in any agreement to which Landlord is a
party respecting such tracks, such share to be a fraction, the numerator of
which is the space contained in the premises, and the denominator of which is
the entire space occupied by rail users in the building.
F. Tenant shall, at its own cost and expense, enter into a regularly
scheduled preventative maintenance/service contract with a maintenance
contractor for servicing all hot water, heating and air conditioning systems and
equipment within the 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 thereof delivered to Landlord) within
thirty (30) days of the date Tenant takes possession of the premises.
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6. ALTERATIONS. Tenant shall not make any alterations, additions or
improvements to the premises (including but not limited to roof and wall
penetrations) without the prior written consent of Landlord. Tenant may, without
the consent of Landlord, but at its own cost and expense and in a good
workmanlike manner erect such shelves, bins, machinery and trade fixtures as it
may deem advisable, without altering the basic character of the building or
improvements and without overloading or damaging such building or improvements,
and in each case complying with all applicable governmental laws, ordinances,
regulations and other requirements. All alterations, additions, improvements and
partitions erected by Tenant shall be and remain the property of Tenant during
the term of this lease and Tenant shall, unless Landlord otherwise elects as
hereinafter provided, remove all alterations, additions, improvements and
partitions erected by Tenant and restore the premises to their original
condition by the date of termination of this lease or upon earlier vacating of
the premises; provided, however, that if Landlord so elects prior to termination
of this lease or upon earlier vacating of the premises, such alterations,
additions, improvements and partitions shall become the property of Landlord as
of the date of termination of this lease or upon earlier vacating of the
premises and shall be delivered up to the Landlord with the premises. All
shelves, bins, machinery and trade fixtures installed by Tenant may be removed
by Tenant prior to the termination of this lease if Tenant so elects, and shall
be removed by the date of termination of this lease or upon earlier vacating of
the premises if required by Landlord; upon such removal Tenant shall restore the
premises to their original condition. All such removals and restoration shall be
accomplished in good workmanlike manner so as not to damage the primary
structure or structural qualities of the buildings and other improvements
situated on the premises.
7. SIGNS.
A. Tenant agrees to have signage program approved by Landlord in accordance
with Landlord's criteria and subject to Landlord's written approval prior to the
commencement date of this lease. The Tenant, upon vacation of the premises, or
the removal or alteration of its sign for any reason, shall be responsible for
the repair, painting, and/or replacement of the building facia surface to which
signs are attached. Landlord gives its approval for Tenant to apply exterior
signage to the premises that is similar in appearance to Tenant's current
exterior signage at 00000 Xxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxx.
B. Tenant shall not, without Landlord's prior written consent (i) make any
changes to or paint the store front; or (ii) install any exterior lights,
decorations or paintings; or (iii) erect or install any signs, windows or door
lettering, placards, decorations or advertising media of any type which can be
viewed from the exterior of the premises, excepting only dignified displays of
customary type for its display windows. All signs, decorations, advertising
media, blinds, draperies and other window treatment of bars or other security
installations visible from outside the premises shall conform in all respects to
the criteria established by Landlord for the Project from time to time in the
exercise of its sole discretion, and shall be subject to the prior written
approval of Landlord 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. Landlord reserves the
right to designate a uniform type of sign for the Project to be installed by
Tenant (or, at Landlord's option, by Landlord), but in any event to be paid for
by Tenant.
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8. UTILITIES. Landlord agrees to provide at its cost water and electricity
service connections into the premises; but Tenant shall pay for all water, gas,
heat, light, power, telephone, sewer, sprinkler charges and other utilities and
services used on or from the premises, together with any taxes, penalties,
surcharges or the like pertaining thereto and any maintenance charges for
utilities and shall furnish all electric light bulbs and tubes. If any such
services are not separately metered to Tenant, Tenant shall pay a reasonable
proportion as determined by Landlord of all charges jointly metered with other
premises. Landlord shall in no event be liable for any interruption or failure
of utility services on the premises.
9. FIRE AND CASUALTY DAMAGE.
A. Landlord agrees to maintain insurance covering the building of which the
premises are a part in an amount not less than eighty percent (80%) (or such
greater percentage as may be necessary to comply with the provisions of any
co-insurance clauses of the policy) of the "replacement cost" thereof as such
coverage is defined in the Replacement Cost Endorsement to be attached thereto,
insuring against the perils of Fire, Lightning, Extended Coverage, Vandalism and
Malicious Mischief, extended by Special Extended Coverage Endorsement to insure
against all other Risks of Direct Physical Loss, such coverages and endorsements
to be as defined, provided and limited in the standard bureau forms prescribed
by the insurance regulatory authority for the State in which the premises are
situated for use by insurance companies admitted in such state for the writing
of such insurance on risks located within such state. Subject to the provisions
of subparagraphs 9B and 9D below, such insurance shall be for the sole benefit
of Landlord and under its sole control. Tenant agrees to pay, to Landlord, as
additional rental, Landlord's cost of maintaining such insurance on said
building (or, in the event the premises constitute a portion of a multiple
occupancy building, Tenant's full proportionate share (as defined in
subparagraph 21B) of such cost). Said payments shall be made to Landlord within
ten (10) days after presentation to Tenant of Landlord's statement setting forth
the amount due. Any payment to be made pursuant to this subparagraph A, with
respect to the year in which this lease commences or terminates shall bear the
same ratio to the payment which would be required to be made for the full year
as that part of such year covered by the term of this lease bears to a full
year.
B. If the buildings situated upon the premises should be damaged or
destroyed by fire, tornado or other casualty, Tenant shall give immediate
written notice thereof to Landlord.
C. If the buildings situated upon the premises should be totally destroyed
by fire, tornado or other casualty, or if they should be so damaged thereby that
rebuilding or repairs cannot in Landlord's estimation be completed within two
hundred (200) days after the date upon 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 the occurrence of
such damage.
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D. If the buildings situated upon the premises should be damaged by any
peril covered by the insurance to be provided by Landlord under subparagraph
9(A) above, but only to such extent that rebuilding or repairs can in Landlord's
estimation be completed within two hundred (200) days after the date upon which
Landlord is notified by Tenant of such damage, this lease shall not terminate,
and Landlord shall at its sole cost and expense thereupon proceed with
reasonable diligence to rebuild and repair such buildings to substantially the
condition in which they existed prior to such damage, except that Landlord shall
not be required to rebuild, repair or replace any part of the partitions,
fixtures, additions and other improvements which may have been placed in, or
about the premises by Tenant. and except that Tenant shall pay to Landlord upon
demand any amount by which Landlord's cost of such rebuilding, repair and/or
replacement exceeds net insurance proceeds paid to Landlord in connection with
such damage. [previous sentence intentionally omitted] If the 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. In the
event that Landlord should fail to complete such repairs and rebuilding within
two hundred (200) days after the date upon which Landlord is notified by Tenant
of such damage, Tenant may at its option terminate this lease by delivering
written notice of termination to Landlord as Tenant's exclusive remedy,
whereupon all rights and obligations hereunder shall cease and terminate.
E. Notwithstanding anything herein to the contrary, in the event the holder
of any indebtedness secured by a mortgage or deed of trust covering the premises
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 by any such holder, whereupon all rights and obligations hereunder shall
cease and terminate.
F. Anything in this lease to the contrary notwithstanding, Landlord and
Tenant hereby waive and release each other of and from any and all rights of
recovery, claim, action or cause of action, against each other, their agents,
officers and employees, for any loss or damage that may occur to the premises,
improvements to the building of which the premises are a part, or personal
property (building contents) within the building, by reason of fire or the
elements regardless of cause or origin, including negligence of Landlord or
Tenant and their agents, officers and employees, but only to the extent of the
insurance proceeds payable under the policies of insurance covering the
property. Because this subparagraph will preclude the assignment of any claim
mentioned in it by way of subrogation (or otherwise) to an insurance company (or
any other person), each party to this lease agrees immediately to give each
insurance company which has issued to it policies of fire and extended coverage
insurance, written notice of the terms of the mutual waivers contained in this
subparagraph, and to have the insurance policies property endorsed, if
necessary, to prevent the invalidation of the insurance coverages by reason of
the mutual waivers contained in this subparagraph.
10. LIABILITY. Landlord shall not be liable to Tenant or Tenant's
employees, agents, patrons or visitors, or to any other person whomsoever, for
any injury to person or damage to property on or about the premises, resulting
from and/or caused in part or whole by the negligence or misconduct of Tenant,
its agents, servants or employees of any other person entering upon the
premises, or caused by the buildings and improvements located on the premises
becoming out of repair, or caused by leakage of gas, oil, water or steam or by
electricity emanating from the premises, or due to any cause whatsoever, and
Tenant hereby covenants and agrees that it will at all times indemnify and hold
safe and harmless the property, the Landlord (including without limitation the
trustee and beneficiaries if Landlord is a trust), Landlord's agents and
employees from any loss, liability, claims, suits, costs, expenses, including
without limitation attorney's fees and damages, both real and alleged, arising
out of any such damage or injury; except injury to persons or damage to property
the sole cause of which is the negligence of Landlord or the failure of Landlord
to repair any part of the premises which Landlord is obligated to repair and
maintain hereunder within a reasonable time after the receipt of written notice
from Tenant of needed repairs. 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 claims, demands or
actions arising out of or in connection with: (i) the premises; (ii) the
condition of the premises; (iii) Tenant's operations in and maintenance and use
of the premises; and (iv) Tenant's liability assumed under this lease, the
limits of such policy or policies to be in the amount of not less than $500,000
per occurrence in respect of injury to persons (including death), and in the
amount of not less than $100,000 per occurrence in respect of property damage or
destruction, including loss of use thereof, All such policies shall be procured
by Tenant from reaponsible insurance companies satisfactory to Landlord.
Certified copies of such policies, together with receipt evidencing payment of
premiums therefor, 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 the renewals thereof (bearing notations
evidencing the payment of renewal premiums shall be delivered to Landlord. Such
policies shall further provide that not less than thirty (30) days written
notice shall be given to Landlord before such policy may be cancelled or changed
to reduce insurance provided thereby.
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11. USE. The demised premises shall be used only for the purpose of
receiving, storing, shipping and selling (other than retail) products, materials
and merchandise made and/or distributed by Tenant and for such other lawful
purposes as may be incidental thereto. Outside storage, including without
limitation, trucks and other vehicles, is prohibited without Landlord's prior
written consent. Tenant shall at its own cost and expense obtain any and all
licenses and permits necessary for any such use. Tenant shall comply with all
governmental laws, ordinances and regulations applicable to the use of the
premises, and shall promptly comply with all governmental orders and directives
for the correction, prevention and abatement of nuisances in or upon, or
connected with, the premises, all at Tenant's sole expense. Tenant shall not
permit any objectionable or unpleasant odors, smoke, dust, gas, noise or
vibrations to emanate from the premises, nor take any other action which would
constitute a nuisance or would disturb or endanger any other tenants of the
building in which the premises are situated or unreasonably interfere with their
use of their respective premises. Without Landlord's prior written consent,
Tenant shall not receive, store or otherwise handle any product, material or
merchandise which is explosive or highly inflammable, Tenant will not permit the
premises to be used for any purpose or in any manner (including without
limitation any method of storage) which would render the insurance thereon void
or the insurance risk more hazardous or cause the State Board of Insurance or
other insurance authority to disallow any sprinkler credits. If any increase in
the fire and extended coverage insurance premiums paid by Landlord or other
Tenants for the building in which Tenant occupies space is caused by Tenant's
use and occupancy of the premises, or if Tenant vacates the premises and causes
an increase in such premiums, then Tenant shall pay as additional rental the
amount of such increase to Landlord.
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12. INSPECTION. Landlord and Landlord's agents and representatives shall
have the right to enter and inspect the premises at any reasonable time during
business hours, for the purpose of ascertaining the condition of the premises or
in order to make such repairs as may be required or permitted to made by
Landlord under the terms of this lease. During the period that is six (6) months
prior to the end of the term hereof, Landlord and Landlord's agents and
representatives shall have the right to enter the premises at any reasonable
time during business hours for the purpose of showing the premises and shall
give the right to erect on the premises a suitable sign indicating the premises
are available. Tenant shall give written notice to Landlord at least thirty (30)
days prior to vacating the premises and shall arrange to meet with Landlord for
a joint inspection of the 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 premises shall be conclusively
deemed correct for purposes of determining Tenant's responsibility for repairs
and restoration.
13. ASSIGNMENT AND SUBLETTING.
A. Tenant shall not have the right to assign, sublet, transfer or encumber
this lease, or any interest therein, without the prior written consent of
Landlord. Any attempted assignment, subletting, transfer or encumbrance by
Tenant in violation of the terms and covenants of this Paragraph shall be void.
All cash or other proceeds of any assignment, such proceeds as exceed the
rentals called for hereunder in the case of a subletting and all cash or other
proceeds of any other transfer of Tenant's interest in ths lease shall be paid
to Landlord, whether such assignment, subletting or other transfer is consented
to by Landlord or not, unless Landlord agrees to the contrary in writing, and
Tenant hereby assigns all rights it might have or ever acquire in any such
proceeds to Landlord. Any assignment, subletting or other transfer of Tenant's
interest in this lease shall be for an amount equal to the then fair market
value of such interest. These covenants shall run with the land and shall bind
Tenant and Tenant's heirs, executors, administrators, personal representatives,
representatives in any bankruptcy proceeding, successors and assigns. Any
assignee, sublessee or transferee of Tenant's interest in this lease (all such
assignees, sublessees and transferees being hereinafter referred to as
"successors"), by assuming Tenant's obligations hereunder shall assume liability
to Landlord for all amounts paid to persons other than Landlord by such
successors in contravention of this Paragraph. No assignment, subletting or
other transfer, whether consented to by Landlord or not, shall relieve Tenant of
its liability hereunder. Upon the occurrence of an "event of default" as
hereinafter defined, if the premises or any part thereof are then assigned or
sublet, Landlord, in addition to any other remedies herein provided, or provided
by law, may at its option collect directly from such assignee or subtenant all
rents becoming due to Tenant under such assignment or sublease and apply such
rent against any sums due to Landlord from Tenant hereunder, and no such
collection shall be construed to constitute a novation or a release of Tenant
from the further performance of Tenant's obligations hereunder.
B. If this Lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code, 11 U.S.C. ss. 101 et. seq., (the "Bankruptcy
Code"), any and all monies or ther 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.
10
C. Any person or entity to which this lease is assigned pursuant to the
provisions of the Bankruptcy Code, 11 X.X.X.xx. et. seq., 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 of confirming
such assumption.
14. CONDEMNATION.
A. If the whole or any substantial part as determined by Landlord of the
premises should be taken for any public or quasi-public use under governmental
law, ordinance or regulation, or by right of eminent domain, or by private
purchase in lieu thereof and the taking would prevent or materially interfere
with the use of the premises for the purpose for which they are being used, as
determined by Landlord this lease shall terminate and the rent shall be abated
during the unexpired portion of this lease, effective when the physical taking
of said premises shall occur.
B. If part of the premises shall 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, and this lease is not terminated
as provided in the subparagraph above, this lease shall not terminate but the
rent payable hereunder during the unexpired portion of this lease shall be
reduced to such extent as may be fair and reasonable under all of the
circumstances.
C. All compensation awarded for any taking (or the proceeds of private sale
in lieu thereof) of the Project, or any part thereof, 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 loss of business or for the taking of Tenant's fixtures and improvements if
a separate award for such items is made to Tenant.
15. HOLDING OVER. Tenant will, at the termination of this lease by lapse of
time or otherwise, yield up immediate possession to Landlord with all repairs
and maintenance required herein to be performed by Tenant completed. If Landlord
agrees in writing that Tenant may hold over after the expiration or termination
of this lease, unless the parties hereto otherwise agree in writing on the terms
of such holding over, 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 notice, and
all of the other terms and provisions of this lease shall be applicable during
that period, except that Tenant shall pay Landlord from time to time upon
demand, as rental for the period of any hold over, an amount equal to double the
rent in effect on the termination date, computed on a daily basis for each day
of the hold over period. No holding over by Tenant, whether with or without
consent of Landlord shall operate to extend this lease except as otherwise
expressly provided. The preceding provisions of this paragraph 14 shall not be
construed consent for Tenant to hold over.
11
16. QUIET ENJOYMENT. Landlord covenants that it now has, or will acquire
before Tenant takes possession of the premises, good title to the premises, free
and clear of all liens and encumbrances, excepting only the lien for current
taxes not yet due, such mortgage or mortgages as are permitted by the terms of
this lease, zoning ordinances and other building and fire ordinances and
governmental regulations relating to the use of such property, and easements,
restrictions and other conditions of record. In the event this lease is a
sublease, then Tenant agrees to take the premises subject to the provisions of
the prior leases. Landlord represents and warrants that it has full rights and
authority to enter into this lease and that Tenant, upon paying the rental
herein set forth and performing its other covenants and agreements herein set
forth, shall peaceably and quietly have, hold and enjoy the premises for the
term hereof without hindrance or molestation from Landlord, subject to the terms
and provisions of this lease,
17. EVENTS OF DEFAULT. The following events shall be deemed to be events of
default by Tenant under this lease:
A. Tenant shall fail to pay any installment of the rent herein reserved
when due, or any other payment or reimbursement to Landlord required herein when
due, and such failure shall continue for a period of five (5) days from the date
such payment was due.
B. The Tenant or any guarantor of the Tenant's obligations hereunder shall
generally not pay its debts as they become due or shall admit in writing its
inability to pay its debts or shall make a general assignment for the benefit of
creditors; or the Tenant or any such guarantor shall commence any case,
proceeding or other action seeking to have an order for relief entered on its
behalf as a debtor or to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, liquidation, dissolution or composition
of it or its debts under any law relating to bankruptcy, insolvency,
reorganization or relief of debtors or seeking appointment of a receiver,
trustee, custodian or other similar official for it or for all or of any
substantial part of its property; or the Tenant or any such guarantor shall take
any action to authorize or in contemplation of any of the actions set forth
above in this paragraph; or
C. Any case, proceeding or other action against the Tenant or any guarantor
of the Tenant's obligations hereunder shall be commenced seeking to have an
order for relief entered against it as debtor or to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, liquidation,
dissolution or composition of it or its debts under any law relating to
bankruptcy, insolvency, reorganization or relief of debtors, or seeking
appointment of a receiver, trustee, custodian or other similar official for it
or for all or any substantial part of its property, and such case, proceeding or
other action (i) results in the entry of an order for relief against it which it
is not fully stayed within seven business days after the entry thereof or (ii)
shall remain undismissed for a period of 45 days.
D. A receiver or trustee shall be appointed for all or substantially all of
the assets of Tenant.
E. Tenant shall generally not pay its debts as such debts become due.
F. Tenant shall vacate all or a substantial portion of the premises,
whether or not Tenant is in default of the rental payments due under this lease.
12
G. Tenant shall fail to discharge any lien placed upon the premises in
violation of Paragraph 20 hereof within twenty (20) days after any such lien or
encumbrance is filed against the premises.
H. Tenant shall fail to comply with any term, provision or covenant of this
lease (other than the foregoing in this Paragraph 17), and shall not cure such
failure within twenty (20) days after written notice thereof to Tenant.
I. Tenant shall fail to continuously operate its business at the Demised
Premises for the permitted use set forth in paragraph 11, whether or not Tenant
is in default of the rental payments due under this Lease,
18. REMEDIES.
A. Upon the occurrence of any of such events of default described in
Paragraph 17 hereof, Landlord shall have the option to pursue any one or more of
the following remedies without any notice or demand whatsoever;
(1) Terminate this lease, in which event Tenant shall immediately
surrender the premises to Landlord, and if Tenant fails so to do, Landlord
may, without prejudice to any other remedy which it may have for possession
or arrearages in rent, enter upon and take possession of the premises and
expel or remove Tenant and any other person who may be occupying such
premises or any part thereof, by force if necessary, without being liable
for prosecution or any claim of damages therefor.
(2) Enter upon and take possession of the premises and expel or remove
Tenant and any other person who maybe occupying such premises or any part
thereof, by force if necessary, without being liable for prosecution or any
claim for damages therefor, and relet the premises and receive the rent
therefor.
(3) Enter upon the premises, by force if necessary, 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; and Tenant 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 Tenant further agrees that Landlord shall not be liable for any damages
resulting to the Tenant from such action, whether caused by the negligence
of Landlord or otherwise.
(4) Alter all locks and other security devices at the premises without
terminating this lease.
B. In the event Landlord may elect to regain possession of the
premises by a forcible detainer proceeding, Tenant hereby specifically
waives any statutory notice which may be required prior to such
proceeding, and agrees that Landlord's execution of this lease is, in part,
consideration for this waiver.
13
C. In the event Tenant fails to pay any installment of rent hereunder as
and when such installment is due, to help defray the additional cost to Landlord
for processing such late payments Tenant shall pay to Landlord on demand a late
charge in an amount equal to five percent (5%) of such installment; and the
failure to pay such amount within ten (10) days after demand therefor shall be
an event of default hereunder. The provision for such late charge shall be in
addition to all of Landlord's other rights and remedies hereunder or at law and
shall not be construed as liquidated damages or as limiting Landlord's remedies
in any manner.
D. In the event Tenant's check, given to Landlord in payment, is returned
by the bank for non-payment, Tenant agrees to pay all expenses incurred by
Landlord as a result thereof.
E. Exercise by Landlord of any one or more remedies hereunder granted or
otherwise available shall not be deemed to be an acceptance of surrender of the
premises by Tenant, whether by agreement or by operation of law, it being
understood that such surrender can be effected only by the written agreement of
Landlord and Tenant. No such alteration of locks or other security devices and
no removal or other exercise of dominion by Landlord over the property of Tenant
or others at the premises shall be deemed unauthorized or constitute a
conversion, Tenant hereby consenting, after any event of default, to the
aforesaid exercise of dominion over Tenant's property within the premises. All
claims for damages by reason of such re-entry and/or repossession and/or
alteration of locks or other security devices are hereby waived, as are all
claims for damages by reason of any distress warrant, forcible detainer
proceedings, sequestration proceedings or other legal process. Tenant agrees
that any re-entry by Landlord may be pursuant to judgment obtained in forcible
detainer proceedings or other legal proceedings or without the necessity for any
legal proceedings, as Landlord may elect, and Landlord shall not be liable in
trespass or otherwise.
F. In the event Landlord elects to terminate the lease by reason of an
event of default, then notwithstanding such termination, Tenant shall be liable
for and shall pay to Landlord, at the address specified for notice to Landlord
herein, the sum of all rental and other indebtedness accrued to date of such
termination, plus, as damages, an amount equal to the greater of (i) [preceding
words intentionally omitted] the total rental hereunder for the remaining
portion of the lease term (had such term not been terminated by Landlord prior
to the date of expiration stated in Paragraph 1). and (ii) the then present
value of the then fair rental value of the premises for such period. [preceding
words intentionally omitted.]
G. In the event that Landlord elects to repossess the premises without
terminating the lease, or in the event Landlord elects to terminate the Lease,
then Tenant, at Landlord's option shall be liable for and shall pay to Landlord,
at the address specified for notice to Landlord herein, all rental and other
indebtedness accrued to the date of such repossession, plus rental required to
be paid by Tenant to Landlord during the remainder of the lease term until the
date of expiration of the term as stated in Paragraph 1 diminished by any net
sums thereafter received by Landlord through reletting the premises during said
period (after deducting expenses incurred by Landlord as provided in
subparagraph 18(G) below). In no event shall Tenant be entitled to any excess of
any rental obtained by reletting over and above the rental herein reserved.
Actions to collect amounts due by Tenant to Landlord under this subparagraph may
be brought from time to time, on one or more occasions, without the necessity of
Landlord's waiting until expiration of the lease term.
14
H. In case of any event of default or breach by Tenant, or threatened or
anticipatory breach or default, Tenant shall also be liable for and shall pay to
Landlord, at the address specified for notice to Landlord herein, in addition to
any sum provided to be paid above, brokers' fees incurred by Landlord in
connection with reletting the whole or any part of the premises; the costs of
removing and storing Tenant's or other occupant's property; the costs of
repairing, altering, remodeling or otherwise putting the premises into condition
acceptable to a new tenant or tenants; and all reasonable expenses incurred by
Landlord in enforcing or defending Landlord's rights and/or remedies including
reasonable attorney's fees which shall be not less than fifteen percent (15%) of
all sums then owing by Tenant to Landlord whether suit is actually filed or not.
I. In the event of termination or repossession of the premises for an event
of default, Landlord shall not have any obligations to relet or to attempt to
relet the premises, or any portion thereof, or to collect rental after
reletting; and in the event of reletting, Landlord may relet the whole or any
portions of the premises for any period to any tenant and for any use and
purpose.
J. If Tenant should fail to make any payment or cure any default hereunder
within the time herein permitted, Landlord, without being under any obligation
to do so and without thereby waiving such default, may make such payment and/or
remedy such other default for the account of Tenant (and enter the premises for
such, purpose), and thereupon Tenant shall be obligated to, and hereby agrees,
to pay Landlord, upon demand, all costs, expenses and disbursements (including
reasonable attorney's fees) incurred by Landlord in taking such remedial action.
K. In the event of any default by Landlord, Tenant's exclusive remedy shall
be an actions for damages (Tenant hereby waiving the benefit of any laws
granting it a liens upon the property of Landlord and/or upon rent due
Landlord), but prior to any such action Tenant will give Landlord written notice
specifying such default with particularity, and Landlord shall thereupon have
thirty days in which to cure any such default. Unless and until Landlord fails
to so cure any default after such notice, Tenant shall not have any remedy or
cause of action by reason thereof. All obligations of Landlord hereunder will be
construed as covenants, not conditions; and all such obligations will be binding
upon Landlord only during the period of its possession of the premises and not
thereafter. The term "Landlord" shall mean only the owner, for the time being of
the premises, and in the event of the transfer by such owner of its interest in
the premises, such owner shall thereupon be released and discharged from all
covenants and obligations of the Landlord thereafter accruing, but such
covenants and obligations shall be binding during the lease term upon each new
owner for the duration of such owner's ownership. Notwithstanding any other
provisions hereof, Landlord shall not have any personal liability hereunder. In
the event of any breach or default by Landlord in any term or provision of this
lease, Tenant agrees to look solely to the equity or interest then owned by
Landlord in the premises; however, in no event, shall any deficiency judgment or
any money judgment of any kind be sought or obtained against any party Landlord.
15
L. In the event that Landlord shall have taken possession of the premises
pursuant to the authority herein granted then Landlord shall have the right to
keep in place and use all of the furniture, fixtures and equipment at the
premises, including that which is owned by or leased to Tenant at all times
prior to any foreclosure thereon by Landlord or repossession thereof by any
lessor thereof or third party having a lien thereon. Landlord shall also have
the right to remove from such premises (without the necessity of obtaining a
distress warrant, writ of sequestration or other legal process) all or any
portions of such furniture, fixtures, equipment and other property located
thereon and to place same in storage at any premises within the County in which
the premises is located; and in such event, Tenant shall be liable to Landlord
for costs incurred by Landlord in connection with such removal and storage.
Landlord shall also have the right to relinquish possession of all or any
portion of such furniture, fixtures, equipment and other property to any person
("Claimant") claiming to be entitled to possession thereof who presents to
Landlord a copy of any instrument represented to Landlord by Claimant to have
been executed by Tenant (or any predecessor of Tenant) granting Claimant the
right under various circumstances to take possession of such furniture,
fixtures, equipment or other property, without the necessity on the part of
Landlord to inquire into the authenticity of said instrument's copy of Tenant's
or Tenant's Predecessor's signature thereon and without the necessity of
Landlord making any nature of investigation or inquiry as to the validity of the
factual or legal basis upon which Claimant purports to act; and Tenant agrees to
indemnify and hold Landlord harmless from all cost, expense, loss, damage and
liability incident to Landlord's relinquishment of possession of all or any
portion of such furniture, fixtures, equipment or other property to Claimant.
The rights of Landlord herein stated shall be in addition to any and all other
rights which Landlord has or may hereafter have at law or in equity; and Tenant
stipulates and agrees that the rights herein granted Landlord are commercially
reasonable.
M. Notwithstanding anything in this Lease to the contrary, all amounts
payable by Tenant to or on behalf of Landlord under this Lease, whether or not
expressly denominated as rent, shall constitute rent for the purposes of section
502(b)(7) of the Bankruptcy Code, 11 X.X.X.xx. 502(b)(7).
N. This is a contract under which applicable law excuses Landlord from
accepting performance from (or rendering performance to) any person or entity
other than Tenant within the meaning of sections 365(c) and 365(e)(2) of the
Bankruptcy Code, 11 X.X.X.xx.xx. 365(c), 365(e)(2).
O. If this Lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code, 11 U.S.C. ss. 101 et seq., (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 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.
P. Any person or entity to which this lease is assigned pursuant to the
provisions of the Bankruptcy Code, 11 U.S.C. ss. 101 et seq., 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
19. MORTGAGES. Tenant accepts this lease subject and subordinate to any
mortgage(s) and/or deed(s) of trust now or at any time hereafter constituting a
lien or charge upon the premises or the improvements situated thereon, provided,
however, that if the mortgagee, trustee, or holder of any such mortgage or deed
of trust elects to have Tenant's interest in this lease superior to any such
instrument, then by notice to Tenant from such mortgagee, trustee or holder,
this lease shall be deemed superior to such lien, whether this lease was
executed before or after said mortgage or deed of trust. Tenant shall at any
time hereafter on demand execute any instruments, releases or other documents
which may be required by any mortgagee for the purpose of subjecting and
subordinating this lease to the lien of any such mortgage.
20. MECHANIC'S LIENS AND TENANT'S PERSONAL PROPERTY TAXES.
A. 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 or Tenant in the 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. 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
premises on which any lien is or can be validly and legally asserted against its
leasehold interest in the premises or the improvements thereon and that it will
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 premises or under
the terms of this lease. Tenant agrees to give Landlord immediate written notice
of the placing of any lien or encumbrance against the premises.
B. Tenant shall be liable for all taxes levied or assessed against personal
property, furniture or fixtures placed by Tenant in the premises. If any such
taxes for which Tenant is liable are levied or assessed against Landlord or
Landlord's property and if Landlord elects to pay the same or if the assessed
value of Landlord's property is increased by inclusion of personal property,
furniture or fixtures placed by Tenant in the premises, and Landlord elects to
pay the taxes based on such increase, Tenant shall pay to Landlord upon demand
that part of such taxes.
21. 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. In the event the premises constitute a portion of a multiple occupancy
building, Tenant's "proportionate share", as used in this lease, shall mean a
fraction, the numerator of which is the space contained in the premises and the
denominator of which is the entire space contained in the building.
17
C. The terms, provisions and covenants and conditions contained in this
lease shall apply to, inure to the benefit of, and be binding upon, the parties
hereto and upon their respective heirs, legal representatives, successors and
permitted assigns, except as otherwise herein expressly provided. Landlord shall
have the right to transfer and assigns, in whole or in part, its rights and
obligations in the building and property that are the subject of this lease.
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 of such party to enter this
lease.
D. 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.
E. Tenant agrees from time to time within ten (10) days after request of
Landlord, to deliver to Landlord, or Landlord's designee, a Certificate of
Occupancy and an estoppel certificate stating that this lease is in full force
and effect, the date to which rent has been paid, the unexpired term of this
lease and such other matters pertaining to this lease as may be requested by
Landlord. It is understood and agreed that Tenant's obligation to furnish such
estoppel certificates in a timely fashion is a material inducement for
Landlord's execution of this lease.
F. This lease may not be altered, changed or amended except by an
instrument in writing signed by both parties hereto.
G. This Lease constitutes the entire understanding and agreement of the
Landlord and Tenant with respect to the subject matter of this Lease, and
contains all of the covenants and agreements of Landlord and Tenant with respect
thereto. Landlord and Tenant each acknowledge that no representations,
inducements, promises or agreements, oral or written, have been made by Landlord
or Tenant, or anyone acting on behalf of Landlord or Tenant, which are not
contained herein, and any prior agreements, promises, negotiations, or
representations not expressly set forth in this Lease are of no force or effect.
H. All obligations of Tenant hereunder not fully performed as of the
expiration or earlier termination of the term of this lease shall survive the
expiration or earlier termination of the term hereof, including without
limitation all payment obligations with respect to taxes and insurance and all
obligations concerning the condition of the premises. Upon the expiration or
earlier termination of the term hereof, and prior to Tenant vacating the
premises, Tenant shall pay to Landlord any amount reasonably estimated by
Landlord as necessary to put the premises, including without limitation all
heating and air conditioning systems and equipment therein, in good condition
and repair. Tenant shall also, prior to vacating the premises, pay to Landlord
the amount, as estimated by Landlord, of Tenant's obligation hereunder for real
estate taxes and insurance premiums for the year in which the lease expires or
terminates. All such amounts shall be used and held by Landlord for payment of
such obligations of Tenant hereunder, with Tenant being liable for any
additional costs therefor upon demand by Landlord, or with any excess to be
returned to Tenant after all such obligations have been determined and satisfied
as the case may be. Any security deposit held by Landlord shall be credited
against the amount payable by Tenant under this Paragraph 21(H).
18
I. 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 contract a clause or provision as similar in terms to such
illegal, invalid or unenforceable clause or provisions as may be possible and be
legal, valid and enforceable.
J. Because the premises are on the open market and are presently being
shown, this lease shall be treated as an offer with the premises being subject
to prior lease and such offer subject to withdrawal or non-acceptance by
Landlord or to other use of the premises without notice, and this lease shall
not be valid or binding unless and until accepted by Landlord in writing and a
fully executed copy delivered to both parties hereto.
K. All references in this lease to "the date hereof" or similar references
shall be deemed to refer to the last date, in point of the, on which all parties
hereto have executed this lease.
L. Tenant represents and warrants that it has dealt with no broker, agent
or other person, in connection with this transaction, or that no broker, agent
or other person brought about this transaction, other Xxxx Xxxxxxx Realtors, 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.
M. If and when included within the term "Landlord", as used in this
instrument, there are more than one person, firm or corporations, 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 payments to 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 within the
continental United States for the receipt of notices and payments to Tenant. All
parties included within the terms "Landlord" and "Tenant", respectively shall be
bound by notices given in accordance with the provisions of Paragraph 23 hereof
to the same effect as if each had received such notice.
22. ADDITIONAL PROVISIONS.
See Special Provisions
23. NOTICES. Each provision of this instrument or of any applicable
governmental laws, ordinances, regulations and other requirements with reference
to the sending, mailing or delivery of any notice or the making of any payment
by Landlord to Tenant or with reference to the sending, mailing or delivery of
any notice or the making of any payment by Tenant to Landlord shall be deemed to
be complied with when and if the following steps are taken:
19
(a) All rent and other payments required to be made by Tenant to
Landlord hereunder shall be payable to Landlord at the address for Landlord
hereinbelow set forth or at such other address as Landlord may specify from
time to time by written notice delivered in accordance herewith. Tenant's
obligation to pay rent and any other amounts to Landlord under the terms of
this lease shall not be deemed satisfied until such rent and other amounts
have been actually received by Landlord.
(b) All payments required to be made by Landlord to Tenant hereunder
shall be payable to Tenant at the address hereinbelow set forth, or at such
other address within the continental United States as Tenant may specify
from time to time by written notice delivered in accordance herewith.
(c) Any notice or document required or permitted to be delivered
hereunder shall be deemed to be delivered whether actually received or not
when deposited in the United States Mail, postage prepaid, Certified or
Registered Mail, addressed to the parties hereto at the respective
addresses set out below, or at such other address as they have theretofore
specified by written notice delivered in accordance herewith:
LANDLORD: TENANT:
XXXX-XXXXXXXX 22-27 LIMITED PARTNERSHIP WEB TECHNOLOGY, INC.
3500 LTV Center ___________ Markison Road
0000 Xxxx Xxxxxx Xxxxxx, XX 00000
Xxxxxx, XX 00000-0000
With notice to:
0000 Xxxxxxxx, #000
Xxxxxx, XX 00000
20
24. LANDLORD'S LIEN. In addition to any statutory lien for rent in
Landlord's favor, Landlord shall have and Tenant hereby grants to Landlord a
continuing security interest for all rentals and other sums of money becoming
due hereunder from Tenant, upon all goods, wares, equipment, fixtures,
furniture, inventory, accounts, contract rights, chattel paper and other
personal property of Tenant situated on the premises subject to this Lease,
which is located at _____ Markison Road, and such property shall not be removed
therefrom without the consent of Landlord until all arrearages in rent well as
any and all other sums of money then due to Landlord hereunder shall first have
been paid and discharged. Products of collateral are also covered. In the event
of a default under this lease, Landlord shall have, in additions to any other
remedies provided herein or by law, all rights and remedies under the Uniform
Commercial Code, including without limitation the right to sell the property
described in this paragraph at public or private sale upon five (5) days notice
to Tenant. Tenant hereby agrees to execute such other instruments necessary or
desirable in Landlord's discretion to perfect the security interest hereby
created. Any statutory lien for rent is not hereby waived, the express
contractual lien herein granted being in addition and supplementary thereto.
Landlord and Tenant agree that this Lease and security agreement serves as a
financing statement and that a copy or photographic or other reproduction of
this portion of this Lease may be filed of record by Landlord and have the same
force and effect as the original. This security agreement and financing
statement also covers fixtures located at the premises subject to thus Lease and
legally described in Exhibit "A", attached hereto and incorporated herein by
this reference, and is to filed for record in the real estate records. The
record owner of this property is Xxxxxxxx Xxxx Company. Tenant warrants that the
collateral subject to the security interest granted herein is not purchased or
used by Tenant for personal, family or household purposes.
EXECUTED BY LANDLORD, this ___ day of ____________, 19__.
Attest/Witness XXXX-XXXXXXXX 22-27, LIMITED
PARTNERSHIP
__________________________________ By_________________________________
Xxxxxxx X. XxXxxxx, Xx.
Title:____________________________ Title: Managing General Partner
EXECUTED BY TENANT, this ___ day of ____________, 19__.
Attest/Witness WEB TECHNOLOGY, INC.
__________________________________ By_________________________________
Title:____________________________ Title:_____________________________
21
SPECIAL PROVISIONS FOR
WEB TECHNOLOGY, INC.
22a. Base Rent. Tenant's base rental payment schedule (using the definition of
rental as described in 2A of the Lease) shall be as follows:
Months Monthly Base Rental
------ -------------------
1-12 $5,179.44
13-24 $5,649.44
25-36 $6,149.44
37-48 $6,649.44
49-60 $7,149.44
22b. Cap on Landscape Maintenance and General Maintenance. It is agreed and
understood that landscape maintenance and general maintenance only will not
exceed the following amounts throughout the primary term of this lease.
This cap on landscape maintenance and general maintenance will not be
granted for any renewal term.
Landscape Maintenance Monthly Landscape
Months Per Sq Ft. Per Year Maint. Charges
------ ------------------- --------------
1-12 $0.1800 $201.45
13-24 $0.1890 $211.52
25-36 $0.1985 $222.15
37-48 $0.2084 $233.23
49-60 $0.2188 $244.87
General Maintenance Monthly Maintenance
Months Per Sq Ft. Per Year Charges
------ ------------------- -------
1-12 $0.0100 $11.19
13-24 $0.0105 $11.75
25-36 $0.0110 $12.31
37-48 $0.0116 $12.98
49-60 $0.0122 $13.65
22c. Renewal Option. Provided that Tenant is not in default of any of the terms,
covenants and conditions hereof, and this Lease has not been assigned or
the premises (or a part thereof) sublet, Tenant shall have the right and
option to extend the original term of this Lease for two (2) further terms
of thirty six (36) months. Such extension of the original term shall be on
the same terms, covenants and conditions as provided for in the original
term except for this paragraph and except that the Base Rent during the
extended term shall be at the fair market rental then in effect on
equivalent properties, of equivalent size, in equivalent areas (but in no
event less than the Base Rent specified in Paragraph 2a of this Lease nor
greater than one hundred thirty-five percent (135%) of the average of the
Base Rents specified in Paragraph 22a, above). Tenant shall deliver written
notice to Landlord of Tenant's intent to exercise the renewal option
granted herein not more than six (6) months nor less than four (4) months
prior to the expiration of the original term of this Lease. In the event
Tenant fails to deliver such written notice within the time period set
forth above, Tenant's right to extend the term hereof shall expire and be
of no further force and effect. In the event Landlord and Tenant fail to
agree in writing upon the fair market rental within thirty (30) days after
exercise by Tenant of this renewal option, Tenant's right hereunder to
extend the term shall become null and void.
22d. During the original term of this lease, provided that Tenant is not then in
default hereunder, Tenant shall have the first right and option to lease
the adjacent space to the south of Tenant's space in Northgate II, Building
24. Landlord shall, by written notice to Tenant, first offer to lease such
space to Tenant upon the same terms and conditions and at the same rental
rate as has been agreed to by Landlord and a third party. If within five
(5) days after Landlord `gives Tenant such written notice, Landlord does
not receive notice in writing that Tenant elects to lease all (and not
part) of such space within five (5) days, then Tenant's right to lease such
additional space shall terminate and expire and Tenant shall have no
further rights pursuant to this paragraph.
22e. Nondisturbance. Upon written request from Tenant, Landlord shall use best
efforts to obtain a Nondisturbance Agreement from the construction lender
for this project. Furthermore, Landlord agrees to use its reasonable best
efforts to obtain, upon separate written request from Tenant, a similar
Nondisturbance Agreement from the mortgage lender for this project.
22f. Exhibit B. This Lease is contingent upon the signature of Exhibit B by both
Tenant and Landlord.
END OF SPECIAL PROVISIONS
EXHIBIT "A"
LEGAL DESCRIPTION
BEING approximately 13,430 square feet out of an approximate 45,405 square foot
facility, commonly known as Xxxxxxxxx Xxxxx XX, Xxxxxxxx 00 located on 24
Markison in Dallas, Texas, and situated on a tract of land described as follows:
BEING 5.798 acres of land in the X. XXXXXXX SURVEY, Abstract No. 587, being part
of City Block 8088, also being known as part of Block B/8088 of NORTHGATE
BUSINESS PARK -- PHASE II, an addition to the City of Dallas, Texas, according
to the Revised Map thereof recorded in Volume 84171, Page 3124 of the Deed
Records of Dallas County, Texas, and being more particularly described as
follows:
BEGINNING at the intersection of the Northeast line of Markison Road (56'
R.O.W.), and the Southeast R.O.W. line of Vista Park Road (56' R.O.W.) said
point also being the beginning of a curve to the right, having a central angle
of 50(degree)26'54", a radius of 202.00 feet, and tangent of 95.16 feet;
THENCE, Northeasterly along said curve to the right, an arc distance of 177.86
feet to a point of tangency, said point being in the Southeast R.O.W. line of
Vista Park Road (56' R.O.W.);
THENCE, N 89(degree)34'00" E, along said South R.O.W. line of Vista Park Road, a
distance of 532.38 feet, said point also being the beginning of a curve to the
right, having a central angle of 90(degree)02'05", a radius of 20.00 feet, and a
tangent of 20.01 feet;
THENCE, Southeasterly along said Southwest R.O.W. of Vista Park Road and said
curve to the right, an arc distance of 31.43 feet to a point of tangency;
THENCE, S 00(degree)23'55" E, along said West R.O.W. line of Vista Park Road, a
distance of 471.24 feet to a point, said point also being the beginning of a
curve to the right, having a central angle of 39(degree)31'0l", a radius of
202.00 feet, and a tangent of 72.56 feet;
THENCE, Southwesterly along said Southwest R.O.W. line of Vista Park Road and
said curve to the right an arc distance of 139.32 feet to a non-tangent point
for a corner;
THENCE, N 50(degree)52'54" W, along said Northeast R.O.W. line of Markison Road,
a distance of 858.05 feet to the POINT OF BEGINNING and CONTAINING 252,572.84
Square Feet or 5.798 Acres of Land.
SUPPLEMENTAL LEASE AGREEMENT
(RENEWAL)
This Supplemental Lease Agreement made and entered into this 22nd day of April,
1993 by and between:
XXXX-XXXXXXXX 22-27 LIMITED PARTNERSHIP
0000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
W/ Copy to: 0000 Xxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000
and
WEB TECHNOLOGY, INC.
00000 Xxxxxxxx Xxxx
Xxxxxx, Xxxxx 00000
(27,830 Square Feet)
This Supplemental Lease Agreement shall modify the original lease agreement
(which, together with any amendments or modifications, shall be known as the
"Lease") between XXXX-XXXXXXXX 22-27 (Landlord) and WEB TECHNOLOGY, INC.
(Tenant) dated December 19, 1987; in which certain real estate and premises
therein described and situated in the County of Dallas, and the State of Texas
were demised and leased by Landlord to Tenant.
It is the sole intent of this Supplemental Lease Agreement to modify the Lease
by the following terms and conditions:
1. SIZE:
The demised premises is hereby increased in size 14,400 rentable square
feet, from 13,430 rentable square feet to 27,830 rentable square feet as
cross hatched on Exhibit "A-1" to this Supplemental Lease Agreement.
Therefore the demised premises shall be changed to 27,830 square feet (see
Exhibit "A" attached).
2. TERM:
The term of the original Lease shall be renewed and extended for a further
term commencing on March 1, 1993 and ending April 30, 1997.
3. BASE RENTAL:
The base monthly rental as described in Paragraph 2C(1) shall be $5,260.08
per month until the commencement of the additional 14,400 square feet. The
additional 14,400 square feet space shall commence on May 17, 1993.
Therefore, the base monthly rental shall be increased to $9,760.08 per
month on May 17, 1993 and continue through April 30, 1997.
4. INTERIOR IMPROVEMENTS:
Tenant accepts the Premises in its "As-Is" condition except that Landlord
at Landlord's expense shall re-carpet the offices referenced on Exhibit
"A-2", and repaint the office area also referenced on Exhibit "A-2". Tenant
at Tenant's expense will merge the electrical and gas services and pay for
any other improvements made on the Premises. All improvements shall be by
and in accordance with Xxxxxxxx Xxxx Company standard specifications.
Landlord shall further give Tenant an allowance of $3,000.00 to go towards
Tenant's improvements. This will be paid direct to Landlord's general
contractor upon completion.
5. RIGHT OF FIRST REFUSAL:
If, during the renewal term of this Lease, the space consisting of
approximately 17,575 square feet which is outlined in red on Exhibit "A-3"
to this Lease (the "Additional Space") shall become available for lease,
after the current lease and renewals thereof of such space to Direct
Technology Corporation, and provided the Tenant has not been in default of
any of the terms, provisions and covenants of any Lease with Landlord, and
has not assigned this Lease or sublet the premises (or a part hereof), and
Tenant, in Landlord's opinion, demonstrates sufficient creditworthiness,
Tenant shall have the right of first refusal to lease the "Additional
Space". Such right shall operate as follows. When a third party becomes
seriously interested in the "Additional Space" Landlord shall first offer
in writing (all and not part of) such "Additional Space" to Tenant. If,
within five (5) days after Landlord gives Tenant such written notice,
Landlord does not receive notice in writing that Tenant elects to lease
(all and not part of) the "Additional Space" within five (5) days, then
Tenant's right to lease the "Additional Space" shall terminate and expire,
and Tenant shall have no further rights pursuant to this paragraph. It is
agreed and understood that the rental rate for the "Additional Space" shall
be no more than $4.70 per square foot excluding taxes, insurance and common
area maintenance, and leased on an "as-is" basis.
6. BROKER:
Tenant requested and agrees that this renewal and expansion is a direct
transaction and that no outside brokers fee is earned or due.
7. This Supplemental Lease Agreement is contingent on the successful
termination of Direct Technology Corporation on the 14,400 square foot
space.
All other terms and conditions of the Lease shall remain in effect and
unchanged.
CROW MARKISON 22-27, LIMITED PARTNERSHIP
By: Xxxxxxxx Xxxx Dallas Industrial, Inc. Agent
By:_____________________________________ Witness:__________________________
Title:__________________________________ Title:____________________________
WEB TECHNOLOGY, INC.
By:_____________________________________ Witness:__________________________
Title:__________________________________ Title:____________________________
EXHIBIT "A"
LEGAL DESCRIPTION
BEING approximately 27,830 square feet out of an approximate 45,405 square foot
facility, commonly known as Xxxxxxxxx Xxxxx XX, Xxxxxxxx 00 located on Markison
in Dallas, Texas, and situated on a tract of land described as follows:
BEING 5.798 acres of land in the X. XXXXXXX SURVEY, Abstract No. 587, being part
of City Block 8088, also being known as part of Xxxxx X/0000 xx XXXXXXXXX
XXXXXXXX XXXX - XXXXX II, an addition to the City of Dallas, Texas, according to
the Revised Map thereof recorded in Volume 84171, Page 3124 of the Deed Records
of Dallas County, Texas, and being more particularly described as follows:
BEGINNING at the intersection of the Northeast line of Markison Road (56'
R.O.W.), and the Southeast R.O.W. line of Vista Park Road (56' R.O.W.) said
point also being the beginning of a curve to the right, having a central angle
of 50(degree)26'54", a radius of 202.00 feet, and tangent of 95.16 feet;
THENCE, Northeasterly along said curve to the right, an arc distance of 177.86
feet to a point of tangency, said point being in the Southeast R.O.W. line of
Vista Park Road (56' R.O.W.);
THENCE, N 89(degree) 34'00" E, along said South R.O.W. line of Vista Park Road,
a distance of 532.38 feet, said point also being the beginning of a curve to the
right, having a central angle of 90(degree)02'05", a radius of 20.00 feet, and a
tangent of 20.01 feet;
THENCE, Southeasterly along said Southwest R.O.W. of Vista Park Road and said
curve to the right, an arc distance of 31.43 feet to a point of tangency;
THENCE, S 00(degree) 23'55" E, along said West R.O.W. line of Vista Park Road, a
distance of 471.24 feet to a point, said point also being the beginning of a
curve to the right, having a central angle of 39(degree)31'0l", a radius of
202.00 feet, and a tangent of 72.56 feet;
THENCE, Southwesterly along said Southwest R.O.W. line of Vista Park Road and
said curve to the right an arc distance of 139.32 feet to a non-tangent point
for a corner;
THENCE, N 500 52'54" W, along said Northeast R.O.W. line of Markison Road, a
distance of 858.05 feet to the POINT OF BEGINNING and CONTAINING 252,572.84
Square Feet or 5.798 Acres of Land.
THIRD AMENDMENT TO LEASE
*STATE OF TEXAS
*KNOW ALL MEN BY THESE PRESENTS
*COUNTY OF DALLAS
THIS THIRD AMENDMENT TO LEASE AGREEMENT is made and entered into by and
between MARKISON VISTA JOINT VENTURE ("LANDLORD") and. AETRIUM - WEB TECHNOLOGY,
LP ("TENANT").
W I T N E S S E T H
WHEREAS, on or about December 19, 1987, Xxxx-Xxxxxxxx 22-27, Limited
Partnership and Web Technology, Inc. entered into that certain Lease Agreement
(the "Lease") pertaining to approximately 13,430 square feet of space (the
"Leased Premises") the Leased Premises being located at 00000 Xxxxxxxx Xxxx,
Xxxxxx, Xxxxx; and
WHEREAS, on or about April 22, 1993 Xxxx-Xxxxxxxx 22-27 Limited Partnership
and Web Technology, Inc. entered into that First Amendment to Lease Agreement
whereby among other things, the Lease Term was extended and the Leased Premises
were increased to 27,830 square feet of space; and
WHEREAS, all rights, title, and interest in the property and said Lease
have been assigned to Markison Vista Joint Venture; and
WHEREAS, on or about December 5, 1996 Landlord and Web Technology, Inc.
entered into that Second Amendment to lease agreement whereby among other
things, the Lease Term was extended; and
WHEREAS, on or about April 1, 1998 Web Technology, Inc. assigned the Lease
to Aetrium - Web Technology, LP; and
WHEREAS, the parties hereto desire to amend the Lease upon the terms and
conditions set forth below:
NOW THEREFORE, For Ten and no/100 dollars ($10.00) in hand paid to each and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree to amend the Lease as follows:
1. The Lease term shall be extended so that the expiration date of the Lease
will be April 30, 2003.
2. The Base Rent as described in Paragraph 2C(1) shall be increased to
$12,756.00 per month. The rental increase to begin on May 1, 2000.
3. Early Termination Election: Tenant may at Tenant's election terminate this
Lease prior to the expiration of the Lease term as set forth in Paragraph 1
on April 30, 2001 or April 30, 2002, ("Early Termination Date") upon the
terms and conditions set forth herein.
(i) Tenant shall give Landlord written notice of its election to terminate
this Lease at least six (6) months prior to the Early Termination Date
upon which termination shall become effective, and
(ii) No event of default by Tenant or no event that with notice or the
passage of time, or both, would constitute an event of default by
Tenant shall have occurred on or before the Early Termination Date.
(iii)Concurrent with the giving of notice under Paragraph 3(i) above,
Tenant shall pay to Landlord in cash the sum of $12,756.00 if
termination is April 30, 2001.
(iv) Concurrent with the giving of notice under Paragraph 3(i) above,
Tenant shall pay to Landlord in cash the amount of the unamortized
Tenant Improvement Allowance incurred by Landlord in connection with
this Lease using an interest factor of 12% per annum. By way of
example if the amount is $27,830.00 the unamortized amount at April
30, 2001 would be $19,637.00 and at April 30, 2002 would be
$10,404.00.
6. Landlord will provide Tenant with an allowance of up to $27,830.00 for
Tenant Improvements to be installed in the Leased Premises. All Tenant
Improvements are subject to the prior written consent of Landlord which
consent shall not be unreasonably withheld. Unless Landlord notifies Tenant
at the time the Tenant Improvements are submitted to Landlord that they are
to be removed at the termination of the Lease and restored to the existing
condition, then Tenant shall have no obligation to remove the Tenant
Improvements at the termination of the Lease. Upon the receipt of a
notarized Affidavit stating that payment has been made for all work and
materials and which includes (1) true and correct copies of releases from
all contractors and suppliers of work and materials and (2) other
construction costs, Landlord will pay to Tenant such amount within thirty
(30) days.
7. Right of First Refusal.
I. Landlord and Tenant acknowledge that 00000 Xxxxxxxx Xxxx containing 17,575
square feet is immediately adjacent to the Premises (hereinafter referred to as
"Adjacent Premises").
II. In the event that the Adjacent Premises become available, Landlord shall
notify Tenant of the availability of the Adjacent Premises.
III. If Tenant within ten (10) business days after receipt of Landlord's notice
as set forth in Paragraph 7 II above, indicates, in writing, its agreement to
lease the Adjacent Premises, then the Adjacent Premises shall be included within
the Premises and leased to Tenant at the rent per square foot currently being
paid by Tenant and otherwise pursuant to the provisions of this lease without
any obligations on the part of the Landlord to make any alterations or repairs,
and to afford any rent abatement and without any contingency provisions.
However, the rent attributable to the Adjacent Premises shall be added to the
rent payable under this Lease. The parties shall immediately execute an
amendment to this lease stating the addition of the Adjacent Premises.
IV. If the Tenant does not deliver a notice, in writing, within ten (10)
business days of receipt of Landlord's said notice, as set forth in Paragraph 7
II above, indicating its agreement to lease the Adjacent Premises, Landlord
thereafter shall have the right to lease the Adjacent Premises to any third
party or parties and there shall be no further obligation in the future to give
Tenant any notice to lease or Right of First Refusal.
8. Landlord hereby agrees to pay a real estate fee in the amount of $6,888.24
to The Staubach Company, payable upon Landlord's return delivery to Tenant
of fully executed originals of this Third Amendment to Lease. A further
real estate fee of $6,888.24 shall be payable to The Staubach Company on
April 30, 2001 and April 30, 2002 in the event Tenant does not elect to
terminate as provided for in this Amendment, it being the intention that
The Staubach will be paid a real estate fee only for each period that this
Amendment is in effect.
9. Except as modified herein, the Lease remains in full force and effect.
Executed this ___ day of December, 1999.
MARKISON VISTA JOINT VENTURE
BY:_____________________________________________
Xxx X. Xxxxxxxxx, Board Member
AETRIUM-WEB TECHNOLOGY, LLP
BY:_____________________________________________
ITS:____________________________________________
SECOND AMENDMENT TO LEASE
*STATE OF TEXAS
*KNOW ALL MEN BY THESE PRESENTS
*COUNTY OF DALLAS
THIS SECOND AMENDMENT TO LEASE AGREEMENT is made and entered into by and
between MARKISON VISTA JOINT VENTURE ("LANDLORD") and WEB TECHNOLOGY, INC.
("TENANT").
W I T N E S S E T H
WHEREAS, on or about December 19, 1987, Xxxx-Xxxxxxxx 22-27, Limited
Partnership and Tenant entered into that certain Lease Agreement (the "Lease")
pertaining to approximately 13,430 square feet of space (the "Leased Premises")
the Leased Premises being located at 00000 Xxxxxxxx Xxxx, Xxxxxx, Xxxxx; and
WHEREAS, on or about April 22, 1993 Xxxx-Xxxxxxxx 22-27 Limited Partnership
and Tenant entered into that First Amendment to Lease Agreement whereby among
other things, the Lease Term was extended and the Leased Premises were
increased; and
WHEREAS, all rights, title, and interest in the property and said Lease
have been assigned to Markison Vista Joint Venture; and
WHEREAS, the parties hereto desire to amend the Lease upon the terms and
conditions set forth below:
NOW THEREFORE, For Ten and no/l00 dollars ($10.00) in hand paid to each and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree to amend the Lease as follows:
1. The Lease term shall be extended so that the expiration date of the Lease
will be April 30, 2000.
2. The Base Rent as described in Paragraph 2C(1) shall be increased to
$11,596.00 per month. The rental increase to begin on May 1, 1997.
3. Early Termination Election: Tenant may at Tenant's election terminate this
Lease prior to the expiration of the Lease term as set forth in Paragraph 1
on April 30, 1999, ("Early Termination Date") upon the terms and conditions
set forth herein.
(i) Tenant shall give Landlord written notice of its election to terminate
this Lease at least six (6) months prior to the Early Termination Date
upon which termination shall become effective, and
(ii) No event of default by Tenant or no event that with notice or the
passage of the, or both, would constitute an event of default by
Tenant shall have occurred on or before the Early Termination Date.
4. Landlord hereby agrees to pay a real estate fee in the amount of $12,523.68
to The Stauback Company, payable upon Landlord's return delivery to Tenant
of fully executed originals of this Second Amendment to Lease. If Tenant
has not delivered a written notice to terminate the Lease as of October 30,
1998, then Landlord will pay an additional real estate fee in the amount of
$6,261.84 to The Staubach Company, payable immediately.
5. Except as modified herein, the Lease remains in full force and effect.
Executed this ___ day of December, 1996.
MARKISON VISTA JOINT VENTURE
BY:________________________________
Xxx X. Xxxxxxxxx, Board Member
WEB TECHNOLOGY, INC.
BY:________________________________
ITS:_______________________________
