EXHIBIT 10.37
GREATER FORT WORTH ASSOCIATION OF REALTORS, INC.
COMMERCIAL-INDUSTRIAL LEASE AGREEMENT
ARTICLE ONE: BASIC TERMS
1.01 Date Of Lease: June 15, 1998
1.02 Landlord: Xxxxxx X. Xxxxxxxxxxxx
0000 Xxxxx Xxxxx, Xxxxxx, XX, 00000
1.03 Tenant: EIS, Inc.
1.04 Property: Approximately 11,000 square feet of space situated at
0000 Xxxxx Xx., Xxxxxx, XX 00000
Legal Description: Wildwood Industrial Park I, part of Block 1,
consisting of 65909 acres located in the City of Irving, also
known as 0000 Xxxxx Xxxxx, Xxxxxx, XX 00000
1.05 Lease Term: 36 months, commencing on the 15th day of June, 1998
and ending on the 15th day of June, 2003.
1.06 Rent: Five Thousand, One Hundred Dollars ($5,100.00) per month
beginning on the Commencement Date through June 1999.
Adjust to market value Dollars ($As Advised )
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per month beginning June 16, 1999 through June 15, 2001.
------- ---- ------- ----
Dollars ($ )
---------------------------------- -----------
per month beginning , through , 19 .
----- ----- ------- ----
Dollars ($ )
---------------------------------- -----------
per month beginning , through , 19 .
----- ----- ------- ----
1.07 Security Deposit (See Section 3.03): -0- Dollars
($ -0- ). (If none, so state)
-----------------
1.08 Last Month's Rent Payable In Advance: -0- Dollars
($ -0- ). (If none, so state)
1.09 Permitted Use (See Section 4.01): As Needed.
1.10 Base Year For Taxes (See Section 12.02): 1997
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1.11 Rent To Be Paid To: Xxxxxx X. Xxxxxxxxxxxx
Address: 0000 Xxxxx Xxxxx, Xxxxxx, XX 00000
1.12 Daily Late Charge (See Section 3.02): -0- Dollars
($ -0- ). (If none, so state)
1.13 Principal Realtor: -0-
1.14 Cooperating Realtor (If none, so state): -0-
1.15 Realtors Commissions (See Section 10.01 and 10.02):
A. Lease Commission due to the Principal Realtor shall be equal
to -0- percent ( -0- %) calculated in
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accordance with Section 10.01. Said lease commission shall be
payable to the Principal Realtor in Tarrant County, Texas:
(i) In installments equal to the percentage stated in this
Section 1.15A of each rental payment to become due to Landlord
and each such installment shall be paid at the time such
rental payment is due; or
(ii) In cash payable as follows: -0-
[Strike subparagraph (i) and complete subparagraph (ii)]
B. Sales commission (See Section 10.02): -0- percent (-0-%).
C. If there is a Cooperating Realtor named in Section 1.14, Principal Realtor
agrees to pay Cooperating Realtor a fee equal to -0- percent (-0-%) of the lease
commission and sales commission received by Principal Realtor hereunder. Such
fee shall be payable to Cooperating Realtor in Tarrant County, Texas, within
five (5) business days (Monday through Friday) after Principal Realtor receives
each payment of lease commission or sales commission.
ARTICLE TWO: LEASE AND LEASE TERM
2.01 LEASE OF PROPERTY. Landlord hereby leases the Property to Tenant and
Tenant hereby leases the Property from Landlord for the Lease Term stated in
Section 1.05. As used herein, the "Commencement Date" shall be the date
specified in Section 1.05 for the beginning of the Lease Term.
2.02 EARLY OCCUPANCY. If Tenant occupies the Property prior to the
Commencement Date, Tenant's occupancy of the Property shall be subject to all
the provisions of this Lease. Early occupancy of the Property shall not advance
the expiration date of this Lease.
2.03 HOLDING OVER. Tenant shall vacate the Property upon the expiration or
earlier termination of this Lease. Tenant shall reimburse Landlord for and
indemnify Landlord against
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all damages incurred by Landlord from any delay by Tenant in vacating the
Property. If Tenant does not vacate the Property upon the expiration or earlier
termination of this Lease, Tenant's occupancy of the Property shall be a "month-
to-month" tenancy, subject to all the terms and provisions applicable to a
month-to-month tenancy, except that the rent then in effect shall be increased
by fifty percent (50%).
ARTICLE THREE: RENT AND SECURITY DEPOSIT
3.01 RENT. Tenant agrees to pay rent for the Property at the rate specified in
Section 1.06. Tenant shall pay the rent for the first and last (if applicable
under Section 1.08) months of the Lease Term upon the execution of this Lease.
One monthly rental installment shall be due and payable on or before the same
day of the second calendar month of the Lease Term as the Commencement Date, and
a like monthly installment shall be due and payable on or before the same day of
each succeeding calendar month during the Lease Term. All rent shall be paid to
the party designated in Section 1.11 at the address stated herein for such
party.
3.02 LATE CHARGE. If any rend due hereunder is not received within five (5)
days after its due date, Tenant shall pay the party named in Section 1.11 above
a late charge equal to the sum stated in Section 1.12 above for each day from
its due date until such delinquent sum is received. The parties agree that such
late charge represents a fair and reasonable estimate of the costs Landlord will
incur by reason of such late payment.
3.03 SECURITY DEPOSIT. Upon execution hereof, Tenant shall deposit with the
party named in Section 1.11 above a cash Security Deposit in the sum stated in
Section 1.07. Landlord may apply all or part of the Security Deposit to any
unpaid rent or other charges due from Tenant or to cure any other defaults of
Tenant. No interest shall be paid on the Security Deposit. Landlord shall not
be required to keep the Security Deposit separate from its other accounts and no
trust relationship is created in respect to the Security Deposit. Upon any
termination of the Lease not resulting from Tenant's default, and after Tenant
has vacated the Property in the manner required by this Lease, Landlord shall
refund the unused portion of the Security Deposit to Tenant.
ARTICLE FOUR: USE OF PROPERTY
4.01 PERMITTED USE. Tenant may use the Property only for Permitted Use stated
in Section 1.09.
4.02 COMPLIANCE WITH LAW. Tenant shall comply with all governmental laws,
ordinances and regulations applicable to the use of the Property, and shall
promptly comply with all governmental orders and directives for the correction,
prevention and abatement of nuisances on or upon, or connected with the
Property, all at Tenant's sole expense. Tenant agrees to not store or permit
hazardous or toxic substances to be placed on the premises without prior written
permission from the Landlord. Hazardous or toxic substances as referred to in
this paragraph shall be defined by U.S. Environmental Protection Agency
regulations and/or Texas Natural
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Resources Preservation Commission regulations. Tenant further agrees to not
place underground or above ground storage tanks on the leased premises without
prior written consent of Landlord.
4.03 SIGNS. Without the prior written consent of Landlord, Tenant shall not
place or affix any signs or other objects upon or to the Property, including but
not limited to the roof or exterior walls of the building or other improvements
thereon, or paint or otherwise deface said exterior walls. Any signs installed
by Tenant shall conform with applicable laws and deed and other restrictions.
Tenant shall remove all signs at the termination of this Lease and shall repair
any damage and close any holes caused or revealed by such removal.
4.04 UTILITIES. Tenant shall pay the cost of all utility services, including
but not limited to initial connection charges, all charges for gas, water and
electricity used on the Property, and for all electric lights, lamps and tubes.
4.05 LANDLORD'S ACCESS. Landlord and its authorized agents shall have the
right, during normal business hours, to enter the Property and any buildings and
other improvements thereon to view, inspect, repair or show the Property.
Landlord shall attempt to advise tenant of the intent of Landlord or its
authorized agents to enter the property.
4.06 INTERRUPTION OF SERVICE. Interruption or curtailment of services
furnished to the Property, if caused by strikes, mechanical difficulties, or any
cause beyond Landlord's control, whether similar or dissimilar to those
enumerated, shall not entitle Tenant to any claim against Landlord or to nay
abatement in rent, nor shall the same constitute constructive or partial
eviction, unless Landlord fails to take such measures as may be reasonable in
the circumstances to restore the service without undue delay. If the premises
are rendered untenantable in whole or in part for fifteen (15) business days
because of such interruption or curtailment of services (other than caused by
any act or omission of Tenant or its invitees, employees or customers), there
shall be a proportionate abatement of rent during the period of such
untenantability.
4.07 EXEMPTIONS FROM LIABILITY. Landlord shall not be liable for any damage or
injury to the person, business (or any loss of income therefrom), goods, wares,
merchandise or other property of Tenant, Tenant's employees, invitees, customers
or any other person in or about the Property, whether such damage or injury is
caused by or results from: (a) fire, steam, electricity, water, gas, or rain;
(b) the breakage, leakage, obstruction or other defects of pipes, sprinklers,
wires, appliances, plumbing, air conditioning or lighting fixtures or any other
cause; (c) conditions arising on or about the Property or upon other portions of
any building of which the Property is a part, or from other sources or places;
or (d) any act or omission of any other tenant of any building of which the
Property is a part. Landlord shall not be liable for any such damage or injury
even though the cause of or the means of repairing such damage or injury are not
accessible to Tenant. The provisions of this Section 4.07 shall not, however,
exempt Landlord from liability or Landlord's gross negligence or willful
misconduct.
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ARTICLE FIVE: MAINTENANCE, REPAIRS AND ALTERATIONS
5.01 ACCEPTANCE OF PREMISES. Tenant acknowledges that Tenant has fully
inspected the Property. Tenant hereby accepts the Property and the buildings
and improvements situated thereon, as suitable for the purpose for which the
same are leased, in their present condition (including all latent or
environmental defects or risks), with such changes therein as may be caused by
reasonable deterioration between the date hereof and the Commencement Date;
provided that Tenant shall not be responsible for remedying any such latent or
environmental defects or risks unless it becomes necessary to remedy such
defects or risks because of alterations, additions or improvements to the
Property made by Tenant, and that Landlord agrees to (a) repair promptly any
presently installed plumbing, plumbing fixtures, electrical wiring, lighting
fixtures, air conditioning or heating equipment or doors that are not in good
working condition on the Commencement Date of which Tenant delivers written
notice to Landlord within thirty days after the Commencement Date; and (b) make
any additional repairs and alterations necessary for Tenant to obtain a
Certificate of Occupancy from the municipality in which the Property is located,
except for those repairs and alterations required solely because of the nature
of Tenant's business. Landlord expressly disclaims and Tenant waives any and
all warranties (including the warranty of suitability), representations and
obligations of Landlord or Landlord's agents that are not expressly stated
herein. Landlord and Tenant acknowledge that Principal Realtor and cooperating
Realtor have no expertise in the detection or correction of environmentally
hazardous or undesirable items. Expert inspections are necessary. Current or
future laws may require clean up by past, current and/or future owners and/or
tenants of the Property. It is the responsibility of Landlord and Tenant to
retain qualified experts to detect and correct such matters. Landlord and
Tenant acknowledge that neither Principal Realtor, nor Cooperating Realtor, have
made an independent investigation or determination with respect to the existence
of hazardous substances and environmental conditions in, on or about the
Property. Any such investigation or determination shall be the responsibility
of Landlord and Tenant. The Principal Realtor or Cooperating Realtor shall not
be responsible for such an investigation. Landlord and Tenant shall, jointly
and severally, defend, indemnify and hold harmless Principal Realtor and
Cooperating Realtor from and against all claims, costs, expenses, actions,
losses, damages and liabilities of any kind whatsoever (including reasonable
attorney's fees) directly or indirectly arising out of the existence of
hazardous substances and/or environmental conditions in, on or about the
Property. This indemnification shall survive the termination of this Lease.
5.02 MAINTENANCE AND REPAIRS BY LANDLORD. Landlord shall at his expense
maintain only the roof, foundation, underground pipes, all outside plumbing and
the structural soundness of the exterior walls (excluding all windows, window
glass, plate glass, and all doors) of the improvements on the Property in good
repair and condition, except for reasonable wear and tear and any damage caused
by the act or omission of Tenant, or Tenant's invitees, employees or customers.
Tenant shall give immediate written notice to Landlord of the need for repairs
or corrections and Landlord shall proceed promptly to make such repairs.
5.03 MAINTENANCE AND REPAIRS BY TENANT. Tenant shall at his expense and risk
maintain all other parts of the improvements on the Property in good repair and
condition, including but not limited to repairs (including necessary
replacement) to the interior plumbing, windows, window glass, plate glass,
doors, heating system, air conditioning equipment, fire protection sprinkler
system, elevators and the interior of the said improvements in general; and
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including the reasonable care of landscaping and regular mowing of the grass,
and maintenance of the paving outside of the improvements and any railroad
siding. In the event Tenant should neglect reasonably to maintain the demised
premises, Landlord shall have the right (but not the obligation) to cause
repairs or corrections to be made and any reasonable costs therefor shall be
payable by Tenant to Landlord as additional rental on the next rental payment
due date. Upon termination of this Lease, Tenant shall deliver up the Property
in good repair and condition, reasonable wear and tear, and damage by fire, wind
storm or other causally excepted. Tenant shall repair any damage caused by
Tenant's act or omission, or the act or omission of Tenant's invitees, employees
or customers.
5.04 ALTERATIONS. Tenant shall not create any openings in the roof or exterior
wall, or make any alterations, additions or improvements to the Property without
the prior written consent of Landlord. Consent to nonstructural alterations,
additions or improvements shall not be unreasonably withheld by Landlord.
Tenant shall have the right to erect or install shelves, bins, machinery, and
trade fixtures, provided that Tenant complies with all applicable governmental
laws, ordinances and regulations. At the expiration or termination of this
Lease, Tenant shall, subject to the restrictions of Section 5.05 below, have the
right to remove such items so installed by it, provided Tenant is not in default
at the time of such removal and provided further that Tenant shall, at the time
of removal of such items, repair in a good and workmanlike manner any damage
caused by installation or removal thereof and restore the premises to the
condition that existed prior to the installation of such items, reasonable wear
and tear excepted. Tenant shall pay for all costs incurred or arising out of
alterations, additions or improvements in or to the Property and shall not
permit a mechanic's or materialman's lien to be asserted against the Property.
5.05 CONDITION UPON TERMINATION. Upon termination of this Lease, Tenant shall
surrender the Property to Landlord, broom clean and in the same condition as
received except for ordinary wear and tear which Tenant was not otherwise
obligated to remedy under any provision of this Lease. However, Tenant shall
not be obligated to repair any damage which Landlord is required to repair under
Article Five. In addition, Landlord may require Tenant to remove any
alterations, additions or improvements made during the term of this Lease,
whether or not made with Landlord's consent. In no event, however, shall Tenant
remove any of the following materials or equipment without Landlord's prior
written consent: any power wiring or power panels; lighting or lighting
fixtures; wall coverings; drapes, blinds or other window coverings; carpets or
other floor coverings; heaters; air conditioners or any other heating or air
conditioning equipment; fencing or security gates; or other similar building
operation equipment and decorations.
ARTICLE SIX: INSURANCE AND INDEMNITY
6.01 PROPERTY INSURANCE. Tenant shall not keep anything upon the Property, or
do anything in or about Property except the usage specified herein, which will
increase the rates for fire and standard extended coverage insurance upon the
building or buildings which are part of the Property. Tenant agrees to pay on
demand any increase in insurance premiums that may be charged to Landlord during
the term of this Lease resulting from a deviation from the usage
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specified herein or from any other cause within Tenant's control. Tenant shall
be responsible for maintaining insurance on Tenant's equipment and other
personal property located on the Property.
6.02 LIABILITY INSURANCE. During the Lease Term, Tenant shall maintain a
policy of comprehensive public liability insurance, at Tenant's expense,
insuring Landing against liability arising out of the ownership, use occupancy
or maintenance of the Property. The initial amount of such insurance shall be
at least $1,000,000. Such policy shall contain a provision which prohibits
cancellation or modification of the policy except upon thirty (30) days prior
written notice to Landlord. Tenant shall deliver a copy of such policy or
certificate (or a renewal thereof) to Landlord prior to the Commercial Date and
prior to the expiration of any such policy during the Lease Term. If Tenant
fails to maintain such policy, Landlord may elect to maintain such insurance at
Tenant's expense.
6.03 INDEMNITY. Tenant hereby agrees to indemnify and hold Landlord harmless
from any loss, expense or claims arising out of any injury to persons or damage
to property on or about the Property or any adjacent area owned by Landlord
caused by the negligence or misconduct of Tenant, its employees, subtenants,
licensees or concessionaires or any other person entering the Property under
express or implied invitation of Tenant, or arising out of the use of the
Property by Tenant and the conduct of its business therein, or arising out of
any breach or default by Tenant in the performance of its obligations hereunder.
Tenant shall not be liable for any injury or damage caused by the negligence or
misconduct of Landlord, or its employees or agents, and Landlord agrees to
indemnify Tenant and hold it harmless from any loss, expense or damage arising
out of such damage or injury.
6.04 WAIVER OF SUBROGATION. Landlord and Tenant each hereby waive any and all
rights of recovery against the other, or against the officers, employees, agents
or representatives of the other, for loss of or damage to its property, or the
property of others under its control, if such loss or damage is covered by any
insurance policy in force (whether or not described in this Lease) at the time
of such loss or damage; provided however such waiver is made only on the
condition that it does not adversely affect the right of the insured to recover
under the applicable insurance policy or policies.
ARTICLE SEVEN: ASSIGNMENT AND SUBLETTING
Tenant shall not assign this agreement or sublet the premises, or any part
thereof without the consent of the Landlord in writing, which consent Landlord
agrees it will unreasonably withhold, but no assignment or subletting shall
release Tenant from any obligation hereunder.
ARTICLE EIGHT: DAMAGE OR DESTRUCTION
8.01 PARTIAL DAMAGE. In the event the improvements situated on the Property
are partial damaged, or rendered partially unfit for occupancy, by fire or other
casualty, Tenant shall give immediate written notice thereof to Landlord. If
Landlord's insurance proceeds are sufficient to
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pay for the necessary repairs, and if the repairs can reasonably be made within
90 days after the Landlord receives such written notice from Tenant, Landlord
shall forthwith cause such repairs to be made and this Lease shall not
terminate. While such repairs are being made, Landlord shall allow Tenant a fair
reduction in rent in proportion to the extent the improvements are partially
unfit for occupancy, unless such damage, or unfitness for occupancy, is due to
the act or omission of Tenant or Tenant's employees, invitees or licensees.
8.02 UNINSURED PARTIAL DAMAGE OR TOTAL SUBSTANTIAL DESTRUCTION. In the event
of total or substantial destruction of the improvements situated on the Property
by fire or other casualty, Tenant shall give immediate written notice thereof to
Landlord. If Landlord's insurance proceeds are insufficient to pay for the
necessary repairs or restoration, or the repairs or restoration cannot
reasonably be made within 90 days after Landlord receives such written notice
from Tenant, this Lease shall terminate and the rent shall be paid to the date
of such casualty. However, if such damage or destruction is due to the act or
omission of Tenant or Tenant's employees, invitees or licensees, Tenant shall
pay to Landlord, within 60 days after the occurrence of such casualty, any
portion of the anticipated cost of repairing or restoring the improvements to
the same condition as on the date of this Lease that are not reimbursed to
Landlord by insurance proceeds. Such anticipated cost shall be determined by
Landlord. Tenant shall make such payment to Landlord, whether or not Landlord
repairs or restores the improvements.
ARTICLE NINE: DEFAULT AND REMEDIES
9.01 DEFAULT. The following events shall be deemed to be events of default
under this Lease:
a. Failure of Tenant to pay any installment of the rent or other sum
payable to Landlord hereunder on the date that same is due and such failure
shall continue for a period of five (5) days after written notice thereof to
tenant;
b. Failure of Tenant to comply with any term, condition or covenant of
this Lease, other than the payment of rent or other sum of money, and such
failure shall not be cured within thirty (30) days after written notice thereof
to Tenant;
c. Tenant shall make an assignment for the benefit of creditors;
d. Abandonment by Tenant of any substantial portion of the Property or
cessation of the use of the use of the Property for the purpose leased for a
period of more than thirty (30) consecutive calendar days.
9.02 REMEDIES. Upon the occurrence of any of the events of default listed in
Section 9.01, Landlord shall have the option to pursue any one or more of the
following remedies without any notice or demand whatsoever:
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a. Terminate this Lease, in which event Tenant shall immediately surrender the
Property to Landlord. If Tenant fails to so surrender such premises, Landlord
may, without prejudice to any other remedy which it may have for possession of
the Property or arranges in rent, enter upon and take possession of the Property
and expel or remove Tenant any other person who may be occupying such premises
or any part thereof. Landlord may hold Tenant liable for all rent and other
indebtedness accrued to the date of such termination, plus, as liquidated
damages and not as a penalty, an amount equal to the then present value of rent
provided for hereunder for the remaining portion of the Lease Term (had this
Lease not been terminated) using a ten (10%) percent value discount factor. In
the event Landlord elects to terminate this Lease by reason of an event of
default, in lieu of recovering from Tenant under the preceding sentence,
Landlord may hold Tenant liable for the amount of all loss and damage which
Landlord may suffer by reason of such termination, whether through inability to
relet the Property on satisfactory terms or otherwise.
b. Enter upon and take possession of the Property without terminating this
Lease, and expel or remove Tenant and any other person who may be occupying such
premises or any part thereof. Landlord may relet the Property and receive the
rent therefor. Tenant agrees to pay to Landlord monthly or on demand from time
to time any deficiency that may arise by reason of any such releting. In
determining the amount of such deficiency, the brokerage commission, attorneys
fees, remodeling expenses and other costs of releting shall be subtracted from
the amount of rent received under such releting.
c. Enter upon the property without terminating the Lease, and do whatever
Tenant is obligated to due under the terms of this Lease. Tenant agrees to pay
Landlord on demand for expenses which Landlord may incur in thus effecting
compliance with Tenant's obligations under this Lease, together with interest
thereon at the rate of eighteen (18%) percent per annum from the date expended
until paid. Landlord shall not be liable for any damages resulting to Tenant
from such action, whether caused by negligence of Landlord or otherwise.
d. Tenant is presumed to have abandoned the Property if Tenant's goods,
equipment, or other property are removed from the Property in an amount
substantial enough to indicate a probable intent to abandon the Property and
such removal is not within the normal course of Tenant's business. In the event
that Tenant is presumed to have abandoned the Property, Landlord may remove and
store any property of tenant that remains on the Property. Landlord may store
such property at any location satisfactory to Landlord. Landlord may dispose of
such stored property after the expiration of sixty (60) days after the date the
property was stored. Landlord shall deliver by certified mail to Tenant at
Tenant's last known address as shown by Landlord's records a notice stating that
Landlord may dispose of Tenant's property if Tenant does not claim the same
within sixty (60) days after the date the property was stored.
e. In the event Tenant is in default under this Lease by reason of Tenant's
failure to pay rent as set forth above, then Landlord may, at Landlord's option,
change all door locks and leave a written notice on a door to Tenant's premises
slating the name and address or telephone number of the individual from whom a
new key can be obtained during Tenant's regular business hours, which are
defined for this purpose as being between 9:00 a.m. and 5:00 p.m. on Monday
through
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Friday of each week. Tenant hereby waives the three (3) days written
notice to vacate required by Texas Property Code Section 24.005 and agrees that
one (1) day written notice to vacate is sufficient for purposes of Texas
Property Code Section 24.005 and the filing of a Forcible Entry and Detainer
lawsuit.
Upon the occurrence of any such events of default, Landlord may enter upon and
take possession of the Property by force, if necessary, without being liable for
prosecution of any claim for damages therefor. Pursuit of any of the foregoing
remedies shall not preclude pursuit of any of the other remedies herein provided
or any other remedies provided by law, nor shall pursuit of any remedy herein
provided substitute a forfeiture or waiver of any rent due to Landlord hereunder
or of any damages accruing to Landlord by reason of the violation of any of the
terms, conditions and convenants herein contained.
ARTICLE TEN: REALTOR'S COMMISSIONS
10.01 AMOUNT AND MANNER OF PAYMENT OF LEASE COMMISSIONS. Landlord agrees to
pay to the Principal Realtor a commission for negotiating this Lease equal to
the percentage stated in Section 1.15A of the total rent to become due to the
Landlord during or because of (i) the Lease Term; (ii) each period of occupancy
of the Property by Tenant, its affiliates, successors or assign, beyond the
Lease Term, whether such continued occupancy be caused by renewal, extension,
holding over, new lease or agreement or otherwise and whether upon the same or
different terms, conditions of covenants of this Lease; (iii) any expansion,
lease extension, renewal or other rental agreement with Landlord, its
affiliates, successor or assigns, demising to Tenant, its affiliates, successors
or assigns, any premises located on or constituting all or part of any tract or
parcel of real property adjoining, adjacent to or contiguous to the Property.
Said lease commission shall be paid in accordance with Section 1.15A. If the
lease commission is payable in cash under Section 1.15A(ii), the lease
commission for any continued occupancy or expansion, as provided above, shall be
payable in cash for the entire term of any such continued occupancy or expansion
at the beginning of such term and at the beginning of any subsequent term.
Notwithstanding that Principal Realtor, or Cooperating Realtor, may be
designated under Section 1.11 to receive rent hereunder and may from time to
time gratuitously perform rent collection and limited property management
services for Landlord, neither Principal Realtor, nor Cooperating Realtor shall
have any obligation under this Lease to perform such rent collection and
management services, unless such obligation arises from a separate agreement
with Landlord that provides for an additional fee for such services.
10.02 COMMISSION ON PURCHASE. In the event Tenant, its affiliates, successors
or assigns, should purchase the Property during the term of this Lease (as the
same may be renewed or extended) and for a period of one hundred twenty (120)
days after Tenant, its affiliates, successors or assigns, vacates the Property,
Landlord shall pay to the undersigned Principal Realtor a sales commission in
cash equal to the percentage stated in Section 1.15B of the purchase price
payable at the closing. Upon the closing of such sale, the lease commission
payments shall terminate if the lease commission is payable in installments in
accordance with Section 1.15A(i); or, in the event the lease commission is
payable in case in accordance with Section 1.15A(ii), Landlord shall receive a
credit against the sales commission equal to the total lease commission paid by
Landlord to the Principal Realtor multiplied by the unexpired
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percentage of the Lease Term as of the date of such closing. (In the event the
Principal Realtor is paid a lease commission in cash in accordance with Section
1.15A(ii) for any continued occupancy beyond the Lease Term or expansion, such
credit shall be equal to the total lease commission paid for such continued
occupancy or expansion multiplied by the unexpired percentage of the term of
such continued occupancy or expansion as of the date of such closing.
10.03 PROTECTION OF REALTORS. If Landlord sells the Property, or assigns
Landlord's interest in this Lease, the buyer or assignee shall, by accepting
such conveyance of the Property or assignment of the lease, be conclusively
deemed to have agreed to make all payments to Principal Realtor thereafter
required of Landlord under this Article Ten. Principal Realtor shall have the
right to bring a legal action to enforce or declare rights under this provision.
The prevailing party in such action shall be entitled to reasonable attorneys
fees to be paid by the losing party. This section is included in this lease for
the benefit of Principal Realtor.
10.04 REALTOR'S LIEN. The Principal Realtor is hereby granted a lien against
the Property to secure payment of all commissions payable under this Article Ten
(including any additional commissions which may hereafter become payable by
reason of renewals, new leases, rental agreements, sales or otherwise). This
lien is subject to the rights of Tenant under this lease, but prior an superior
to any liens hereafter created against the Property, excepting only liens in
favor of banks, insurance companies, savings and loan associations and similar
regulated financial institutions securing indebtedness incurred for the purpose
of acquiring the Property of constructing, repairing, rebuilding or remodeling
buildings and other improvements thereon, to all of which liens the lien hereby
created shall be subordinate and inferior.
10.05 PAYMENT TO PRINCIPAL REALTOR. Landlord shall be liable for payment of
all commissions to Principal Realtor only, whereupon it shall be protected from
any claims from any Cooperating Realtor or Broker.
ARTICLE ELEVEN: CONDEMNATION
Landlord shall notify Tenant if Landlord receives notice of any potential
condemnation of the Property or portion thereof. If all or any portion of the
Property is taken under the power of eminent domain or sold under the threat of
that power (all of which are called "Condemnation"), this Lease shall terminate
as to the part taken or sold on the date the condemning authority takes title or
possession, by delivering written notice to the other within ten (10) days after
receipt of written notice of such taking (or in the absence of such notice,
within ten (10) days after the condemning authority takes possession). If
neither Landlord nor Tenant terminates this Lease, this Lease shall remain in
effect as to the portion of the Property not taken, except that the rent shall
be reduced in proportion to the reduction in floor area of the Property. Any
Condemnation award or payment shall be distributed in the following order; (a)
first, to any ground lessor, mortgagee or beneficiary under a deed of trust
encumbering the Property, the amount of its interest in the Property; (b)
second, to Tenant, only the amount of any award specifically designated for loss
of or damage to Tenant's trade fixtures or removable personal property; and (c)
third, to Landlord, the remainder of such award, whether as compensation for
reduction in the value of the leasehold, the taking of the fee, or otherwise.
If this Lease is not terminated,
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Landlord shall repair any damage to the Property caused by the Condemnation,
except that Landlord shall not be obliged to repair any damage for which Tenant
has been reimbursed by the condemning authority. If the severance damages
received by Landlord are not sufficient to pay for such repair, Landlord shall
have the right to either terminate this Lease or make such repair at Landlord's
expense.
ARTICLE TWELVE: TAXES
12.01 PAYMENT BY TENANT. Tenant shall pay the real estate taxes on the
Property during the Lease Term.
12.02 PAYMENT BY TENANT. Tenant shall pay the party named in Section 1.11
above, as additional rental, the excess, if any, of the real estate taxes on the
Property for any year during the Lease Term over the real estate taxes on the
Property for the base year stated in Section 1.10. Tenant shall make such
payment within fifteen (15) days after receipt of a statement showing the amount
and computation of such increase. Tenant shall be responsible for the pro-rata
portion of such additional rental for any fractional part of a year preceding
the end of the Lease Term, which prorated sum shall be due and payable upon the
termination of this Lease. If the termination of this Lease occurs before the
tax rate is fixed for the particular year, the proration shall be upon the basis
of the tax rate for the preceding year applied to the latest assessed valuation,
and notwithstanding the termination of this Lease, any difference in the actual
real estate taxes for such year shall be adjusted between the parties upon
receipt of written evidence of the payment thereof. Tenant agrees to pay all
personal property taxes levied against the leased premises and Tenant during the
term hereof by reason of Tenant's improvements, inventory, equipment and
business conducted at the leased premises.
12.03 JOINT ASSESSMENT. If the Property is not separately assessed, Tenant's
share of the real estate taxes payable by Tenant under Section 12.02 shall be
determined from reasonably available information. Landlord shall make a
reasonable determination of Tenant's proportionate share of such real estate
taxes and Tenant shall pay such share to Landlord within fifteen (15) days after
receipt of Landlord's written statement.
12.04 CONTEST BY TENANT. Tenant may, at its own expense, contest any tax
assessment for which Tenant may be wholly or partially responsible. Except as
hereinafter provided, Tenant need not pay the tax, assessment or charge during
the pendency of the contest and Tenant may prevent Landlord from paying any tax,
assessment or charge that Tenant is contesting pursuant to this section 12.04,
pending any resolution of the contest, by depositing with Landlord, before such
tax, assessment or charge becomes delinquent, Tenant's portion of the full
amount of the tax or assessment, plus the full amount of any penalty that might
be imposed for failure to make timely payment and six (6) months of interest at
the rate imposed by the entity levying the tax or assessment. Upon final
resolution of the tax or assessment contest, Landlord may use the money
deposited by Tenant to pay Tenant's portion of any tax or assessment, plus the
full amount of any penalty or interest, due under the final resolution, and
Tenant shall receive the balance of the deposit, if any. If the deposit is
insufficient to pay these amounts, Tenant must immediately pay such
insufficiency to Landlord. Notwithstanding the foregoing, Landlord may pay, or
require
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Tenant to pay, any tax, assessment or charge, or any portion thereof, for which
Tenant is responsible under this Article Twelve, pending resolution of Tenant's
contest of the tax, assessment or charge, if payment is demanded by a holder of
a mortgage on the property, or if failure to pay will subject all or part of the
Property to forfeiture or loss. Landlord reserves the right to contest any tax,
assessment or charge on the Property.
ARTICLE THIRTEEN: LANDLORD'S LIEN
In addition to the statutory landlord's lien, Tenant hereby grants to Landlord a
security interest to secure payment of all rent and other sums of money becoming
due hereunder from Tenant, upon all goods, wares, equipment, fixtures, furniture
and other personal property of Tenant situated in or upon the Property, together
with the proceeds from the sale or lease thereof. Such property shall not be
removed without the consent of Landlord until all arrearages in rent and other
sums of money then due to Landlord hereunder shall first have been paid and
discharged. Upon request by Landlord, Tenant agrees to execute and deliver to
Landlord a financing statement in form sufficient to perfect the security
interest of Landlord in the aforementioned property and proceeds thereof under
the provisions of the Uniform Commercial Code in force in the State of Texas.
ARTICLE FOURTEEN: SUBORDINATION, ATTORNMENT AND NON-DISTURBANCE
14.01 SUBORDINATION. Landlord shall have the right to subordinate this lease
to any ground lease, deed of trust or mortgage encumbering the Property, and
advances made on the security thereof and any renewals, modifications,
consolidations, replacements or extensions thereof, whenever made or recorded.
However, Tenant's right to quiet possession of the Property during the Lease
Term shall not be disturbed if Tenant pays the rent and performs all of Tenant's
obligations under this Lease and is not otherwise in default. If any ground
lessor, beneficiary or mortgagee elects to have this Lease prior to the lien of
its ground lease, deed of trust or mortgage and gives written notice thereof to
Tenant, this Lease shall be deemed prior to such ground lease, deed of trust or
mortgage whether this lease is dated prior or subsequent to the date of said
ground lease, deed of trust or mortgage or the date of recording thereof.
14.02 ATTORNMENT. If Landlord's interest in the Property is acquired by any
ground lessor, beneficiary under a deed of trust, mortgage or purchaser at a
foreclosure sale, Tenant shall attorn to the transferee of or successor to
Landlord's interest in the Property and recognize such transferee or successor
as landlord under this Lease. Tenant waives the protection of any statue or
rule of law which gives or purports to give Tenant any right to terminate this
Lease or surrender possession of the property upon the transfer of Landlord's
interest.
14.03 SIGNING OF DOCUMENTS. Tenant shall sign and deliver any instruments or
documents necessary or appropriate to evidence any such attornment or
subordination or agreement to do so. If Tenant fails to do so within ten (10)
days after written request, Tenant hereby makes, constitutes and irrevocably
appoints Landlord, or any transferee or successor of Landlord the attorney-in-
fact of Tenant to execute and deliver any such instrument or document.
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14.04 ESTOPPEL CERTIFICATES.
a. Upon Landlord's written request, Tenant shall execute, acknowledge and
deliver to Landlord a written statement certifying (i) that none of the terms or
provisions of this Lease have been charged (or if they have been charged,
stating how they have been changed); (ii) that this Lease has not been canceled
or terminated; (iii) the last due date of payment of the rent and other changes
and the time period covered by such payment; and (iv) that Landlord is not in
default under this Lease (or, if Landlord is claimed to be in default, stating
why). Tenant shall deliver such statement to Landlord within ten (10) days
after Landlord's request. Any such statement by Tenant may be given to Landlord
to any prospective purchaser or encumbrancer of the Property. Such purchaser or
encumbrancer may rely conclusively upon such statement as true and correct.
b. If Tenant does not deliver such statement to Landlord within such ten (10)
day period, Landlord, and any prospective purchaser or encumbrancer, may
conclusively presume and rely upon the following facts: (i) that the terms and
provisions of this Lease have not been changed except as otherwise represented
by Landlord; (ii) that this Lease has not been cancelled or terminated except as
otherwise represented by the Landlord; (iii) that not more than one month's rent
or other charges have been paid in advance; and (iv) that Landlord is not in
default under the Lease. In such event, Tenant shall be estopped from denying
the truth of such facts.
ARTICLE FIFTEEN: MISCELLANEOUS
15.01 EXHIBITS. All exhibits, attachments, annexed instruments and addenda
referred to herein shall be considered a part hereof for all purposes with the
same force and effect as if copied at full length herein.
15.02 INTERPRETATION. Words of any gender used in this Lease shall be held and
construed to include any other gender, and words in the singular shall be held
to include the plural, unless the context otherwise requires. In any provision
relating to the conduct, acts or omissions of Tenant, the term "Tenant" shall
include Tenant's agents, employees, contractors, invitees, successors, permitted
assigns or others using the Property with Tenant's expressed or implied
permission.
15.03 CAPTIONS. The captions or headings of paragraphs in the Lease are
inserted for convenience only, and shall not be considered in construing the
provisions hereof if any question of intent should arise.
15.04 WAIVERS. All waivers must be in writing and signed by the waiving party.
Landlord's failure to enforce any provision of this Lease or its acceptance of
rent shall not be a waiver and shall not prevent Landlord from enforcing that
provision or any other provision of this Lease in the future. No statement on a
check from Tenant or in a letter accompanying a payment check shall be binding
on Landlord. Landlord may, with or without notice to Tenant, negotiate such
check without being bound to the conditions of such statement.
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15.05 SEVERABILITY. A determination by a court of competent jurisdiction that
any provision of this Lease or any part thereof is illegal or unenforceable
shall not cancel or invalidate the remainder of such provision of this Lease,
which shall remain in full force and effect.
15.06 JOINT AND SEVERAL LIABILITY. All parties signing this Lease as Tenants
shall be jointly and severally liable for the obligations of Tenant.
15.07 INCORPORATION OF PRIOR AGREEMENTS; MODIFICATIONS. This Lease is the only
agreement between the parties pertaining to the lease of the Property and no
other agreements are in effect. All amendments to this Lease shall be in
writing and signed by all parties. Any other attempted amendment shall be void.
15.08 BINDING EFFECT. The terms, conditions and covenants contained in the
Lease, shall apply to, inure to the benefit of, and be binding upon the parties
hereto and their respective heirs, representatives, successors and permitted
assigns, except as otherwise herein expressly provided. All rights, powers,
privileges, immunities and duties of Landlord under this Lease, including but
not limited to any notices required or permitted to be delivered by Landlord to
Tenant hereunder, may, at Landlord's option, be exercised or performed by
Landlord's agent or attorney.
15.09 NOTICES. 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, registered or certified
mail, return receipt requested, addressed to parties hereto at the respective
addresses stated herein, or at such other address as they have theretofore
specified by written notice delivered in accordance herewith. Notices to Tenant
shall be delivered to the address specified on the signature page hereof, except
that, upon Tenant's taking possession of the Property, the Property address
shall be Tenant's address for notice purposes.
15.10 FORCE MAJEURE. In the event performance by Landlord of any term,
condition or covenant in this Lease is delayed or preempted by any Act of God,
strike, lockout, shortage of material or labor, restriction by any governmental
authority, civil riot, flood or any other cause not within the control of
Landlord, the period of performance of such term, condition or covenant shall be
extended for a period equal to the period Landlord is so delayed or hindered.
15.11 ATTORNEYS FEES. If on account of any breach or default of any party
hereto in its obligations to any other party hereto (including but not limited
to the Principal Realtor), it shall become necessary for the non-defaulting
party to employ an attorney to enforce or defend any of its rights or remedies
hereunder, the defaulting party agrees to pay the non-defaulting party its
reasonable attorneys' fees, whether or not suit is instituted in connection
therewith.
15.12 TIME OF ESSENCE. Time is of the essence in this Lease.
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ARTICLE SIXTEEN: SPECIAL PROVISIONS AND RIDERS
Special provisions may be set forth in the blank space and/or a rider or riders
attached hereto. If no additional provisions are to be inserted in the blank
space below, please draw line through such space. If no rider or riders are to
be attached hereto, please state "No Riders" in the blank space below. If a
rider or riders are to be attached hereto, please state in the blank space
below: "See Rider or Riders Attached," and please have Landlord and Tenant
initial all such riders.
1. Lease commencement date is contingent on the completion of the sale of X.
Xxxxxxxxxxxx Enterprises Inc. to EIS Inc.
2. Tenant pays all property insurance.
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THIS IS A LEGAL DOCUMENT, READ IT CAREFULLY. IF YOU DO NOT UNDERSIGNED THE
EFFECT OF ANY PART OF THIS LEASE, SEEK COMPETENT LEGAL ADVICE. THE GREATER
FORTH WORTH ASSOCIATION OF REALTORS ("GFWAR") HAS FURNISHED THIS FORM FOR THE
CONVENIENCE OF ITS MEMBERS. LANDLORD AND TENANT ACKNOWLEDGE THAT THEY HAVE NOT
RULED ON ANY LEGAL ADVICE FROM PRINCIPAL REALTOR, COOPERATING REALTOR, GFWAR OR
GFWAR'S OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, AFFILIATES OR ATTORNEYS.
EXECUTED as of the date in Section 1.01 above.
LANDLORD TENANT
XXXXXX X. XXXXXXXXXXXX EIS, Inc.
------------------------------------ --------------------------------------
By: /s/ XXXXXX X. XXXXXXXXXXXX By: /s/ XXXXXX XXXXXXX
------------------------------------ --------------------------------------
Title: President Title: V.P. Operations
------------------------------------ --------------------------------------
Address:____________________________ Address:______________________________
____________________________________ ______________________________________
Date of execution by Landlord: 5/28/98 Date of execution by Tenant:__________
PRINCIPAL REALTOR, Member of the COOPERATING REALTOR
Greater For Worth Association
of Realtors
None.
------------------------------------ --------------------------------------
By:_________________________________ By:___________________________________
Address:____________________________ Address:______________________________
____________________________________ ______________________________________
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