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EXHIBIT 4.9
LEASE AGREEMENT
BETWEEN
XXXXXXX X. XXXXX AND XXXXXXX XXXXX
AS LANDLORD
AND
GOVERNMENT RECORDS SERVICES, INC.
AS TENANT
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Lease covering premises at 0000 Xxxx Xxxxxxxxxxx Xxxx,
Xxxxxx Xxxxxx, Xxxxxx, Xxxxx
LEASE ("LEASE"), dated as of ___________, 2000, between XXXXXXX X.
XXXXX AND XXXXXXX XXXXX, having an address of 0000 Xxxxxxxx Xxxxx, Xxxxxx, Xxxxx
00000 ("LANDLORD"), and GOVERNMENT RECORDS SERVICES, INC., a Texas corporation,
having an address of 0000 Xxxx Xxxxxxxxxxx Xxxx, Xxxxxx, Xxxxx ("TENANT").
THE PARTIES HERETO DO HEREBY COVENANT AND AGREE AS
FOLLOWS:
1. DEFINITIONS. The following terms for purposes of this Lease shall have the
meanings hereinafter specified:
a. "ADDITIONAL RENT" shall have the meaning given such term in SECTION
3.C. of this Lease.
b. "EVENT OF DEFAULT" shall have the meaning given such term in SECTION
19. of this Lease.
c. "LEASE YEAR" shall mean a period of time conforming to the
following: The first "Lease Year" of the term of this Lease shall mean the
period beginning on the Commencement Date and ending 12 months after the first
day of the first month following such date of opening unless such opening date
is the first day of a month, in which case the first Lease Year shall terminate
on the date 12 months after such opening date; the second Lease Year of the term
of this Lease shall commence on the day following the last day of the first
Lease Year and end 12 months thereafter; and succeeding Lease Years during the
term of this Lease shall commence and end on dates corresponding to those on
which the second Lease Year begins and ends.
d. "PREMISES" shall have the meaning given such term in SECTION 2. of
this Lease.
e. "TAXES" shall have the meaning given such term in SECTION 6. of this
Lease.
f. "TOTAL MONTHLY RENT" shall have the meaning given such term in
SECTION 3. of this Lease.
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2. 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 above-named
County and State and more particularly described on EXHIBIT A attached hereto
and made a part hereof for all purposes, together with all rights, privileges,
easements, appurtenances, and immunities belonging to or in any way pertaining
to the said premises, and together with the buildings and other improvements
erected upon said premises (the said real property and the buildings and
improvements thereon being hereinafter referred to as the "PREMISES") to have
and to hold the same for a term of approximately 120 calendar months commencing
as of October 1, 2000 and ending at midnight on the last day of September 2010,
unless sooner terminated as herein provided, Tenant acknowledges that it has
inspected the Premises and accepts the Premises and the buildings and
improvements thereon in their present condition as suitable for the purpose for
which the Premises are leased and further acknowledges that except as otherwise
provided herein, no representations as to the condition or repair of the
Premises nor promises, to alter, remodel, or improve the Premises have been made
by Landlord.
3. RENT.
A. The total consideration for each Lease Year during the term of this
Lease (exclusive of Additional Rent, as hereinafter set forth) shall be
$720,000.00 per Lease Year. Tenant agrees to pay to Landlord on October 1, 2000,
and in advance on the first day of every calendar month thereafter in lawful
money of the United States of America, without deduction or offset, prior
notice, or demand at Landlord's address for notices hereunder, or at such other
address as may be designated in accordance with SECTION 26. hereof, 1/12 of the
total consideration for the applicable Lease Year as "TOTAL MONTHLY RENT".
B. In the event that Tenant shall fail to pay any installment of Total
Monthly Rent by the tenth day of the month in which such installment is due, or
Additional Rent within ten days after Tenant's receipt of the xxxx therefor,
Tenant shall pay as Additional Rent a sum equal to five percent (5%) of such
unpaid amount. Such charges shall be in addition to, and not in lieu of,
Landlord's other rights provided by this Lease or otherwise.
C. All sums, liabilities, obligations, and other amounts which Tenant
is required to pay or discharge pursuant to the terms of this Lease in addition
to Total Monthly Rent or as a result of Landlord's curing an event of default
pursuant to SECTION 20. of this Lease, together with any interest, penalty, or
other sum which may be added for late payment thereof, shall constitute
additional rent hereunder ("ADDITIONAL RENT"). In the event of any failure on
the part of Tenant to pay or discharge any of the foregoing, Landlord shall have
all rights, powers, and remedies provided for herein or by law or equity or
otherwise in the case of nonpayment of Total Monthly Rent.
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4. DISCLAIMER OF WARRANTIES. Except as otherwise set forth or called for herein,
Landlord does not make or has not made any warranties or representations of any
kind or character, express or implied, with respect to the Premises or any
portion thereof, its physical condition, income to be derived therefrom or
expenses to be incurred with respect thereto, its fitness or suitability for any
particular use, or any other matter or thing relating to or affecting the same,
and there are no oral agreements, warranties, or representations collateral to
or affecting the Premises or any portion thereof. Tenant acknowledges that it
has inspected the Premises and has made an independent determination that the
Premises are suitable for Tenant's intended uses and purposes. Accordingly,
Landlord and Tenant hereby agree that the Premises will be leased in an "as is"
condition.
5. USE. The Premises may be used for any lawful purpose in compliance with the
state and local law and ordinances. 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 and all private
restrictions 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, upon, or connected with the Premises, all at Tenant's
sole expense. 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 or any material which may be corrosive or
otherwise damaging to the Premises or any appurtenances thereto, except as
currently conducted on the Premises. Tenant will not, without Landlord's
approval, permit the Premises to be used for any purpose which would render the
insurance thereon void or voidable or the insurance risk more hazardous.
Further, Tenant shall not introduce into the Premises, or use therein any
equipment or fixtures which might be reasonably expected, due to excess weight,
vibration, or any other characteristic, to cause damage to the Premises.
6. TAXES.
A. Landlord agrees to pay or cause to be paid before they become
delinquent all taxes (both general and special, hereinafter collectively
referred to as "TAXES") lawfully levied or assessed against the Premises or any
part thereof; provided, however, Landlord may, at its sole cost and expense (in
its own name or in the name of both Landlord and Tenant as it may deem
appropriate) dispute and contest the same, and in such case such disputed item
need not be paid until finally adjudged to be valid. In the event Landlord fails
to notify Tenant, within seven (7) business days after receipt of written notice
from the Tenant, of its intention to dispute and contest the Taxes, Tenant may,
at its sole cost and expense, dispute and contest the same, and in such case
such disputed item need not be paid until finally adjudged to be valid. At the
conclusion of any such contest, Landlord or Tenant (as the case may be) shall
pay the items contested to the extent that they are held valid, together with
all items, court costs, interest, and penalties relating thereto. Any refund
resulting from such a proceeding brought either by Tenant or Landlord or by them
jointly shall be applied and paid first to reimburse the party or parties who
brought the proceeding for the reasonable costs and expenses of such proceeding
borne by such party or parties and then to reimburse Tenant
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for the difference between the amount it paid for Taxes for each tax year
covered in whole or in part by the fiscal tax year or years involved in such
proceeding and the amount Tenant would have been required to pay for such tax
year if the Taxes for such fiscal tax year or years had been assessed in
accordance with the decision rendered in such proceeding, and any remaining
balance shall be paid to Landlord.
B. Notwithstanding the above, as between Landlord and Tenant, the
Tenant shall be responsible for the payment of all such taxes If Landlord is
required by any mortgagee to escrow taxes, with the payment of each monthly
installment of Total Monthly Rent, Tenant shall pay to Landlord an amount equal
to 1/12 of the estimated annual taxes to accrue against the Premises (such
estimate to be based upon, and in no event less than, any monthly tax escrow
amount which Landlord is required to pay to the holder of any first lien
indebtedness on the Premises). As soon as practical after the taxes are actually
assessed against the Premises for each year during the term, Landlord will
notify Tenant of the amount thereof and Landlord and Tenant will make
appropriate adjustments between themselves such that Tenant pays the actual
amount of the taxes for the fiscal tax year in question. Any payment to be made
pursuant to this subparagraph B with respect to the real estate tax year in
which this Lease terminates shall bear the same ratio to the payment which would
be required to be made for the full tax year as that part of such tax year
covered by the term of this Lease bears to a full tax year. Notwithstanding
anything to the contrary contained in this Lease, with respect to the real
estate tax year in which this Lease commences, Tenant shall be responsible for
the payment of all such taxes with no adjustment between Landlord and Tenant.
Landlord's real estate tax statements with respect to the Premises shall be made
available for inspection by Tenant at the Premises upon Tenant's request.
7. REPAIRS. Tenant shall, at its own cost and expense, keep and maintain all
parts of the Premises including, but not limited to routine maintenance only of
the roof, foundation, loadbearing walls, and other structural portions of the
Premises, as well as the windows, glass and plate glass, doors (including
overhead doors), interior walls, finish work, floors and floor covering, heating
and air-conditioning systems, gutters, downspouts and protective posts therefor,
curbs, steps and landings, plumbing work and fixtures, parking and roadway
areas, and gas, water, and other utility lines in good repair and condition
(including any necessary replacements thereto) during the term and shall take
good care of the Premises and its fixtures and suffer no waste. Tenant shall, at
its own cost and expense, care for the grounds around the buildings on the
Premises, including the mowing of grass, care of shrubs, and general landscaping
and will keep the parking areas, driveways, and alleys and the whole of the
Premises in a clean and sanitary condition. Landlord shall not be responsible
for the repair or maintenance of the Premises, or any portion thereof, unless
any damage thereto is caused by the willful act or gross negligence of Landlord
or any agent of Landlord.
8. ALTERATIONS. Tenant shall not make any alterations, additions, or
improvements to the Premises 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, make such minor
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alterations, additions, or improvements or erect, remove, or alter such
partitions, or erect such shelves, bins, machinery, and trade fixtures as it may
deem advisable, and without altering the basic character of the building or
improvements, without overloading or damaging such building or improvements, in
such case complying with all applicable governmental laws, ordinances,
regulations, and other requirements. At the termination of this Lease, Tenant
shall, if Tenant so elects and upon receipt of Landlord's consent (not to be
unreasonably withheld), at Tenant's sole cost and expense, remove all
alterations, additions, improvements, and partitions erected by Tenant and
restore the Premises to their original condition; otherwise such improvements
shall be delivered to the Landlord with the Premises. All shelves, bins,
machinery, and trade fixtures installed by Tenant may be removed by Tenant at
the termination of this Lease if Tenant so elects so long as Tenant is not then
in default under the terms hereof, and shall be removed if required by Landlord.
All such removals and restorations shall be accomplished in a good and
workmanlike manner so as not to damage the primary structure or structural
qualities of the buildings and other improvements situated on the Premises. Any
fixtures installed in the Premises by Tenant other than shelves, bins,
machinery, and similar trade fixtures shall be the property of Landlord when
installed.
9. SIGNS. Tenant shall have the right to install signs upon the Premises only
when first approved in writing by Landlord (which approval may not be
unreasonably withheld or delayed) and subject to any applicable governmental
laws, ordinances, regulations, and other requirements and subject to applicable
restrictive covenants, if any. Tenant shall remove all such signs at the
termination of this Lease. Such installations and removals shall be made in such
manner as to avoid injury or defacement of the buildings and other improvements
situated on the Premises.
10. INSPECTION. Upon not less than twenty-four (24) hours notice to Tenant,
Landlord and Landlord's agents and representatives shall have the right to enter
and inspect the Premises (provided Landlord's entry does not unreasonably
interfere with Tenant's use of the Premises) during reasonable business hours,
for the purpose of ascertaining the condition of the Premises. During the period
that is six (6) months prior to the end of the term hereof and upon not less
than twenty-four (24) hours notice to Tenant, Landlord and Landlord's agents and
representatives shall have the right to enter the Premises (provided Landlord's
entry does not unreasonably interfere with Tenant's use of the Premises) during
reasonable business hours for the purpose of showing the Premises to prospective
tenants and shall have the right to erect on the Premises a suitable sign
indicating that the Premises are for lease. Further, upon not less than
twenty-four (24) hours notice to Tenant, Landlord and its representatives shall
have the right to enter the Premises (provided Landlord's entry does not
unreasonably interfere with Tenant's use of the Premises) during reasonable
business hours for the purpose of showing the Premises to prospective
purchasers.
11. UTILITIES. Tenant shall pay all charges incurred for any utility services
used on or from the Premises and any maintenance charges for utilities during
the term of this Lease. Tenant shall be responsible for any costs associated in
any manner with any additional utility connections to the
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Premises which Tenant may require, and shall furnish all electric light bulbs
and tubes. Landlord shall in no event be liable for any interruption or failure
of utility services on the Premises.
12. ASSIGNMENT AND SUBLETTING. Except that Tenant may assign or sublet this
Lease to a subsidiary or a sister corporation if notice is given to Landlord of
such action, Tenant shall not have the right to assign this Lease or to sublet
the whole or any part of the Premises without the prior written consent of
Landlord, which consent may not be unreasonably withheld or delayed; provided,
however, that in determining whether or not Landlord will consent to any
assignment or subletting hereof, Landlord shall be entitled to consider all
factors which may impact the value of the Premises or the payment of rentals
hereunder, including but not limited to the financial capacity and business
experience of the proposed subtenant or assignee and the planned use of the
Premises. Notwithstanding any permitted assignment or subletting, unless
otherwise agreed in writing between Landlord and Tenant, Tenant shall, at all
times remain fully responsible and liable for the payment of the rentals herein
specified and for compliance with all of its other obligations under the terms,
provisions, and covenants of this Lease. Upon the occurrence of an Event of
Default, if the Premises or any part thereof are then assigned or subletted,
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 by Tenant hereunder, and no such collection
shall be construed to constitute a novation or a release of Tenant from the
further performance of its obligations hereunder. Landlord shall have the right
to assign any of its rights under this Lease, and upon such assignment Landlord
shall be released of all obligations hereunder.
13. FIRE AND CASUALTY DAMAGE.
A. If the buildings situated on the Premises should be damaged or
destroyed by fire, tornado, or other casualty, Tenant shall give immediate
written notice thereof to Landlord.
B. If the buildings situated on the Premises should be totally
destroyed by fire, tornado, or other casualty, or if they should be so damaged
that, in Landlord's opinion, rebuilding or repairs cannot be completed within
180 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 assurance of
such damage. Landlord shall notify Tenant within twenty (20) working days after
Landlord is aware of such damage or destruction if Landlord elects to terminate
this Lease by reason thereof.
C. If the buildings situated on the Premises should be damaged by fire,
tornado, or other casualty, but only to such extent that rebuilding or repairs
can, in Landlord's opinion, be completed within 180 days after the date upon
which Landlord is notified by Tenant of such damage, or, if Landlord does not
exercise its option to terminate this Lease upon the occurrence of an event
described in, and covered by, subparagraph B above, this Lease shall not
terminate, but Landlord
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shall, at its sole cost and expense, 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, and other
improvements which may have been placed on the Premises by Tenant, unless such
damage was caused by Landlord's willful act or gross negligence. Landlord's
obligation with respect to the reconstruction or repair of the Premises set
forth in this subparagraph C is contingent upon Landlord's mortgagee making
available to Landlord sufficient insurance proceeds to allow Landlord to
complete such reconstruction. Landlord shall not be obligated to commence its
reconstruction until Landlord has obtained a final adjustment as to the amount
of insurance proceeds and has reached agreement with Landlord's mortgagee as to
the application of such proceeds; provided, however, that if Landlord has not
commenced reconstruction within forty-five (45) days after the occurrence of
such damage or destruction Tenant may terminate this Lease by written notice
given to Landlord of its election to do so unless, within ten (10) days after
Landlord's receipt of such notice, Landlord advises Tenant that it will proceed
with reconstruction or repair without regard to the amount or application of
insurance proceeds. 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 180 days after the date upon
which Landlord is notified by Tenant of such damage (which period shall be
extended for any delays caused by strikes, unavailability of materials or labor,
inclement weather, or other causes beyond the control of Landlord), Tenant may,
at its option, terminate this Lease by delivering written notice of termination
to Landlord, whereupon all rights and obligations hereunder shall cease and
terminate.
D. 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, at its sole option, to terminate this Lease
by delivering written notice of termination to Tenant, whereupon all rights and
obligations hereunder shall cease and terminate.
14. PROPERTY INSURANCE.
A. Tenant, at its sole cost and expense, shall keep all insurable
portions of the Premises insured or cause it to be insured throughout the term
of this Lease against loss or damage by fire and such other risks as may be
included, in the customary form of extended coverage insurance form time to time
carried by prudent owners of comparable facilities in the area, in amounts
sufficient to prevent the application of any co-insurance penalty provisions
contained in the applicable policies, and in any event in an amount not less
than eighty percent (80%) of the then full insurable value of the Premises or
such higher amount as may be otherwise required by the Landlord's mortgage. The
term "full insurable value" shall mean the actual replacement cost (exclusive of
costs of excavations, foundations, and footings).
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B. All insurance provided for in this Lease shall be effected under
enforceable policies issued by insurers of recognized responsibility licensed to
do business in the state in which the Premises are located and approved by
Landlord and mortgagee. Upon the execution of this Lease, and thereafter not
less than thirty (30) days prior to the expiration dates of the expiring
policies theretofore furnished pursuant to this paragraph, originals or
certified copies of the policies bearing notations evidencing payment of the
premiums, or accompanied by other evidence satisfactory to Landlord of such
payment, shall be delivered by Tenant to Landlord and Landlord's mortgagee.
C. All policies of insurance provided for in this paragraph, shall name
Landlord, Tenant, and Landlord's mortgagee as insureds, as their respective
interests may appear. As between Landlord and Tenant, Landlord shall be entitled
to negotiate in good faith and settle with any insurance carrier in the event of
damage to the Premises, and all insurance proceeds shall be payable to Landlord,
for the benefit of Landlord and Landlord's mortgagee; provided, however, that if
Tenant covers its trade fixtures, other leasehold improvements, equipment, and
furnishings under the same policy as is carried on the Premises, nothing herein
shall be construed to limit Tenant's right to negotiate and settle with the
insurer with respect to damage to Tenant's property, and all such insurance
proceeds shall be payable to Tenant.
D. Each of Landlord and Tenant hereby releases the other from any and
all liability or responsibility to the other or anyone claiming through or under
them by way of subrogation or otherwise for any loss or damage to property
caused by fire or any of the extended coverage casualties covered by the
insurance maintained hereunder to the extent, and only to the extent, of
insurance proceeds collected in connection therewith, even if such fire or other
casualty shall have been caused by the fault or negligence of the other party,
or anyone for whom such party may be responsible; provided, however, that this
release and waiver shall be applicable and in force and effect only to the
extent that it does not, under applicable law and procedure, cause coverage
under any insurance policy to be void or voidable.
E. Notwithstanding the foregoing, in the event that at any time during
the term, the holder of any lien on the Premises requires the maintenance of an
escrow account for the payment of insurance premiums with respect to the
Premises, Tenant shall pay to Landlord, concurrently with the payment of Total
Monthly Rent hereunder, an additional rental payment equal to 1/12 of the
estimated annual insurance premiums, which payment shall be subject to annual
readjustment between Landlord and Tenant in the same manner as tax escrow
payments are readjusted pursuant to SECTION 6.B. hereof. In such event Landlord,
or Landlord's lien holder, shall be responsible for the maintenance of the
insurance coverage on the Premises, but Tenant shall be free to obtain its own
insurance on its inventory, trade fixtures, and moveable personal property.
15. 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 caused by the
negligence or misconduct of Tenant, its agents, servants, or employees, or of
any other person entering upon the Premises, or caused by the buildings and
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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 other cause whatsoever (other than Landlord's negligence
or willful acts, to the extent liability therefor is not waived under SECTION
14.D. above), and Tenant agrees to indemnify Landlord and hold it harmless from
any loss, expense, or claims, including attorneys' fees, arising out of any such
damage or injury, except for any injury to person or damage to property caused
by the negligence or willful misconduct of Landlord. Tenant shall not be liable
to Landlord or Landlord'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 caused by the negligence or misconduct of Landlord, its
agents, servants, or employees, and Landlord agrees to indemnify Tenant and hold
it harmless from any loss, expense, or claims, including attorneys' fees,
arising out of any such damage or injury. 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 (and, at Landlord's request,
Landlord's mortgagee) against all claims, demands, or actions arising out of or
in connection with Tenant's use or occupancy of the Premises, or by the
condition of the Premises, the limits of such policy or policies to be in an
amount not less than $1,000,000.00 in respect of any one occurrence and in an
amount not less than $100,000.00 in respect of property damaged or destroyed,
and to be written by insurance companies licensed to do business in the state in
which the Premises are located. Such policies or duly executed certificates of
insurance shall be promptly delivered to Landlord and renewals thereof as
required shall be delivered to Landlord at least ten (10) days prior to the
expiration of the respective policy terms. All such policies shall contain
provisions requiring that the insurer give Landlord not less than thirty (30)
days' prior written notice of the cancellation of any of such policies.
16. CONDEMNATION.
A. If the whole or any substantial part 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, this Lease shall terminate and the rent shall be abated during the
unexpired portion of this Lease, effective when the physical taking of the said
Premises shall occur. For the purposes hereof "substantial part of the Premises"
shall be deemed to mean the condemnation of any portion of the buildings or more
than ten percent (10%) of the parking spaces forming a part of the Premises, or
any condemnation which materially impairs access to the Premises. In the event
of any such taking of the Premises, any unearned rent shall be refunded to
Tenant.
B. If less than a substantial 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, this Lease shall not terminate, but the rent hereunder during the
unexpired portion of this Lease shall be reduced to an amount that is fair and
reasonable under all of the circumstances.
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C. In the event of any such taking or private purchase in lieu thereof,
Landlord shall be entitled to receive and retain all awards which may be made in
respect of the taking of or damage to the Premises or any portion thereof.
Nothing herein shall be construed as prohibiting Tenant from seeking a separate
award for the taking of its trade fixtures and any leasehold improvements it may
have installed during the term of this Lease.
17. HOLDING OVER. Should Tenant, or any of its successors in interest, hold over
the Premises, or any part thereof, after the expiration of the term of this
Lease, unless otherwise agreed in writing, such holding over shall constitute
and be construed as creating a tenancy at sufferance, at a rental equal to the
Total Monthly Rent payable for the last month of the term hereof. The inclusion
of the preceding sentence shall not be construed as Landlord's permission for
Tenant to hold over.
18. QUIET ENJOYMENT. Landlord covenants that it now has good title to the
Premises in fee simple, sufficient to allow it to enter into this Lease and
perform its obligations hereunder, free and clear of 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. Landlord represents and warrants that Tenant shall, during the term
hereof, peaceably and quietly have, hold, and enjoy the Premises for the term
hereof without hindrance or molestation from landlord or any person claiming the
Premises by, through, or under Landlord, subject to the terms and provisions of
this Lease.
19. EVENTS OF DEFAULT. The following events shall be deemed to be events of
default (each an "EVENT OF DEFAULT") by Tenant under this Lease:
A. Tenant shall fail to pay any installment of Total Monthly Rent,
Additional Rent, or other amounts, hereby reserved or shall fail to perform or
discharge any other obligation or liability hereunder requiring the payment of
money when any such payment is due and such failure shall remain uncured ten
(10) days after Landlord gives written notice to Tenant of such failure.
B. Tenant shall become insolvent, or shall make a transfer in fraud of
creditors, or shall make an assignment for the benefit of creditors.
C. Tenant shall file a petition under any section or chapter of any
bankruptcy, insolvency, or similar law or statute of the United States or any
state thereof heretofore or hereinafter enacted; or Tenant shall have such a
petition filed against it involuntarily and such petition is not withdrawn or
otherwise removed within sixty (60) days of its being filed; or Tenant shall be
adjusted bankrupt or insolvent in proceedings filed against Tenant thereunder.
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C. A receiver or trustee shall be appointed for all or substantially
all of the assets of Tenant.
D. Tenant shall desert or vacate the Premises.
E. Tenant shall fail to comply with any material term, provision, or
covenant of this Lease (other than the foregoing in this SECTION 19.), or shall
fail to discharge any obligation or liability hereunder not involving the
payment of money, and shall not cure any such failure within thirty (30) days
after written notice thereof to Tenant from Landlord, provided that if such
default is not susceptible to cure within thirty (30) days, Tenant shall be
deemed to have cured such default for up to an additional 180 days beyond such
initial 30-day period if Tenant has commenced efforts to cure such default
within such thirty (30) day period and diligently pursues such curative actions
until such default is cured.
20. REMEDIES. Upon the occurrence of any of such Events of Default described
herein, except as may be otherwise provided herein or by applicable law,
Landlord shall have the option to pursue any one or more of the following
remedies without any notice or demand whatsoever:
A. Terminate this Lease, in which event Tenant shall immediately
surrender the Premises to Landlord without any payment therefor, and if Tenant
fails to do so, 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 any lawful means, whether through judicial
process or otherwise, and including the lawful use of force, if necessary,
without being liable for prosecution or any claim of damages therefor; and
Tenant agrees to pay to Landlord on demand the amount of all loss and damage
which Landlord may suffer by reason of such termination, whether through
inability to relet the Premises on satisfactory terms or otherwise.
B. 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 any lawful means, whether through judicial process or otherwise, and
including the lawful use of force, if necessary, without being liable for
prosecution or any claim for damages thereof, and relet the Premises, in the
name of Landlord or otherwise, for such term or terms (which may be greater or
lesser than the period which would otherwise have constituted the balance of the
term of this Lease) and on such conditions (which may include reasonable
concessions or free rent) as Landlord may reasonably determine, and receive the
rent therefor. In the event of any such re-entry or dispossession, Tenant shall
not thereby be relieved of its liability and obligations under this Lease, which
shall survive any such re-entry or dispossession, and in that event (i) the rent
and other charges required to be paid by Tenant up to the term of such re-entry
or dispossession shall become due and payable, together with such reasonable
expenses as Landlord may incur for reasonable attorneys' fees, brokerage
commissions, and/or expenses of putting the Premises in such condition as the
Tenant under the provisions hereof is required to maintain, or for preparing the
same for re-rental and (ii) Tenant or
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the legal representatives of Tenant shall also pay Landlord, as liquidated
damages for the failure of Tenant to observe and perform Tenant's covenants
herein contained, an amount equal to the sum of (i) the base rental set forth in
SECTION 3. hereof and (ii) all Additional Rent payable by Tenant under the
provisions hereof, as if this Lease were still in effect, less the net amount,
if any, of the rents and all other amounts collected on account of this Lease or
other leases of the Premises for each month of the period which would otherwise
have constituted the balance of the term of this Lease as the same may
theretofore have been extended. In computing the amount of such liquidated
damages there shall be included such expenses as Landlord may incur in
connection with re-letting, including reasonable attorneys' fees, brokerage
commissions, expenses of keeping the Premises in the condition as the Tenant
under the provisions of this Lease is required to maintain, or expenses of
preparing the same for re-letting. Any such liquidated damages shall be paid in
monthly installments by Tenant on the day specified in SECTION 3. hereof for the
payment of rental due hereunder, and any suit brought to collect the amount of
the deficiency for any month shall not prejudice in any way the rights of
Landlord to collect the deficiency for any subsequent month by a similar
proceeding. Landlord shall at all times use reasonable efforts to relet the
Premises.
C. Enter upon the Premises by any lawful means, whether through
judicial process or otherwise, and including the lawful use of 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 reasonable
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, unless
caused by the gross negligence or willful misconduct of Landlord or otherwise.
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
or in equity, nor shall pursuit of any remedy herein provided constitute 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, provisions,
and covenants herein contained. No waiver by Landlord of any violation or breach
of any of the terms, provisions, and covenants herein contained shall be deemed
or construed to constitute a waiver of any other violation or breach of any of
the terms, provisions, and covenants herein contained. Landlord's acceptance of
the payment of rental or other payments hereunder after the occurrence of an
event of default shall not be construed as a waiver of such default, unless
Landlord so notifies Tenant in writing. Forbearance by Landlord to enforce one
or more of the remedies herein provided upon an Event of Default shall not be
deemed or construed to constitute a waiver of such default. No act or thing done
by the Landlord or its agents during the term hereby granted shall be deemed an
acceptance of the surrender of the Premises and no agreement to accept a
surrender of said Premises shall be valid unless in writing signed by Landlord.
The receipt by Landlord of rent with knowledge of the breach of any covenant or
other provision contained in this Lease shall not be deemed or construed to
constitute a waiver of any other violation or breach of any of the terms,
provisions, and covenants contained herein.
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21. 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. 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; provided that
such mortgagee agrees in writing to recognize the continuance and validity of
this Lease so long as there shall be no Event of Default on the part of Tenant.
Landlord agrees to execute and deliver from time to time at Tenant's request
such waivers or subordinations of lien, estoppel certificates, or similar
instruments which may be required by any person who extends financing to Tenant
and desires to obtain a security interest in Tenant's leasehold improvements,
inventory, trade fixtures, and/or trade equipment.
22. MECHANIC'S LIENS. Tenant shall have no authority, express or implied, to
create or place any lien or encumbrance of any kind or nature whatsoever upon,
or in any manner to bind, the interest of Landlord in the Premises or to charge
the rentals payable hereunder for any claim in favor of any person dealing with
Tenant, including those who may, at Tenant's instance, furnish materials or
perform labor for any construction or repairs, and each such claim shall affect
and each such lien shall attach, if at all, only to the leasehold interest
granted to Tenant by this instrument. 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 by
or on behalf of Tenant 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 form any
and all loss, cost, or expense based on or arising out of asserted claims or
liens incurred by Tenant against the leasehold estate or against the rights,
titles, and interest of the Landlord in the Premises or under the terms of this
Lease. If any mechanics', materialmen's or other similar lien shall at any time
be filed against any part of the Premises on account of any work, labor or
services performed or claimed to have been performed, or on account of any
materials furnished or claimed to have been furnished, for or at the direction
of Landlord or by any of Landlord's contractors or subcontractors, Landlord
shall, within twenty (20) days of receipt of written notice form Tenant and
without cost or expense to Tenant, forthwith either cause the same to be (i)
discharged of record by payment, bond, order of a court of competent
jurisdiction, or otherwise, or (ii) contested, in which event any judgment or
other process issued in such contest shall be paid or discharged before
execution thereof. If any mechanics', materialmen's or other similar lien shall
at any time be filed against any part of the Premises on account of any work,
labor or services performed or claimed to have been performed, or on account of
any materials furnished or claimed to have been furnished, for or at the
direction of Tenant or by any of Tenants's contractors or subcontractors, Tenant
shall, within twenty (20) days of receipt of written notice form Landlord and
without cost or expense to Landlord, forthwith either cause the same to be (i)
discharged of record by payment, bond, order of a court of competent
jurisdiction, or otherwise, or (ii) contested, in which event any judgment or
other process issued in such contest shall be paid or discharged before
execution thereof.
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23. ESTOPPEL CERTIFICATES. Tenant agrees to furnish, from time to time, when
requested by Landlord, any prospective purchaser, or the holder of any deed of
trust or mortgage covering the Premises, a certificate signed by Tenant to the
effect that this Lease is then presently in full force and effect and
unmodified, if such be the case; that the term of this Lease has commenced and
the full rental is then accruing hereunder; that Tenant has accepted possession
of the Premises; that no rent under this Lease has been paid more than thirty
(30) days in advance of its due date; that the address for notices to be sent to
Tenant is as set forth in this lease (or has been changed by notice duly given
and is as set forth in the certificate); that Tenant, as of the date of such
certificate, has no charge, lien, or claim of offset under this Lease or
otherwise against rents or other charges due or to become due hereunder; and
that to the knowledge of Tenant, Landlord is not then in default under this
Lease. The certificate shall also contain such other and further information as
may be reasonably requested by Landlord, any prospective purchaser, or the
holder of any such deed of trust or mortgage and if any of the foregoing
information is not correct, a detailed explanation thereof.
24. WAIVER BY TENANT. Tenant hereby waives and surrenders for itself and all
claiming by, through, and under it, including creditors of all kinds to the
maximum extent permitted by law, (a) any right and privilege which it or any of
them may have under any present or future constitution, statute, or rule of law
to redeem the Premises or to have a continuance of this Lease for the term after
termination of Tenant's right of occupancy by order or judgement of any court or
by any legal process or writ, under the terms of this Lease, or after the
termination of the term of this Lease as herein provided, (b) the benefits of
any present or future constitution, statute, or rule of law which exempts
property from liability for debt or for distress for rent, and (c) the
provisions of any law relating to notice and/or delay in levy of execution in
case of eviction of a tenant for nonpayment of rent.
25. BROKERS. Each party hereto represents and warrants to the other that such
party has incurred no liability to any real estate broker or agent with respect
to the payment of any commission regarding the negotiation or execution of this
Lease. It is agreed that if any claims for commissions or fees, including,
without limitation, brokerage fees, finder's fees, or commissions, are ever made
against Landlord or Tenant in connection with this Lease, all such claims shall
be handled and paid by the party whose actions or alleged commitments form the
basis of such claim and such party shall indemnify and hold harmless the other
from and against any and all such claims or demands with respect to any
brokerage fees, finder's fees, or agents' commissions or other compensation
asserted by any person, firm, or corporation in connection with this Lease.
26. NOTICES. Each provision of this Lease 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 the 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:
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A. All rent and other payments required to be made by Tenant to
Landlord hereunder shall be payable to Landlord at the address hereinbelow set
forth or at such other address as Landlord may specify from time to time by
written notice delivered in accordance herewith.
B. Any notice or document required or permitted to be delivered
hereunder (other than a payment, which shall be deemed received only when
actually received) shall be deemed to be delivered, whether actually received or
not, two (2) days after deposit in the United States Mail, postage prepaid,
certified or registered mail, return receipt requested, addressed to the
appropriate party hereto at the address set out opposite its name below, or at
such other address as it has theretofore specified by written notice delivered
in accordance herewith:
LANDLORD: TENANT:
Xxxxxxx X. Xxxxx Government Records Services, Inc.
0000 Xxxxxxxx Xxxxx 0000 Xxxx Xxxxxxxxxxx Xxxx
Xxxxxx, Xxxxx 00000 Xxxxxx, Xxxxx 00000
with a copy to:
Gardere & Xxxxx, L.L.P.
Attn: Xxxxx Xxx
0000 Xxx Xxxxxx
Xxxxxx, Xxxxx 00000
27. 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 and vice versa, unless the context otherwise requires.
B. The terms, provisions, 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.
C. The captions are inserted in this Lease for convenience only and in
no way define, limit, or describe the scope or intent of this Lease, or any
provision hereof, nor in any way affect the interpretation of this Lease.
D. This Lease may not be altered, changed, or amended except by an
instrument in writing signed by Landlord and Tenant.
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E. Each and every covenant and agreement contained in this Lease is,
and shall be construed to be, a separate and independent covenant and agreement.
If any term or provision of this Lease or the application thereof to any person
or circumstances shall to any extent be invalid and unenforceable, the remainder
of this Lease, or the application of such term or provision to persons or
circumstances other than those as to which it is invalid or unenforceable, shall
not be affected thereby.
F. This Lease sets forth the entire agreement between the parties as to
the subject matter hereof and all prior oral or written agreements with respect
thereto are merged herein.
G. Except as otherwise expressly stated in SECTION 20. hereof, whenever
in this Lease the consent, approval, opinion, satisfaction or other similar act
of either party is required, it is agreed that the same shall not be
unreasonably withheld or delayed.
28. RETURN OF PREMISES. At the end of the term covered by this Lease, or upon
such earlier termination of this Lease as provided herein, Tenant shall
surrender the Premises to Landlord in the same good order and condition as the
Premises were in prior to the beginning of the term hereof, reasonable wear and
tear and damage by fire or other casualty (other than damage caused by Tenant's
negligence to which the waiver contained in SECTION 14.D. is inapplicable) only
excepted; provided, that in any case the Premises shall be surrendered to
Landlord reasonably clean and free of debris. At such time Tenant shall deliver
all keys to the Premises to Landlord. Any equipment, leasehold improvements,
trade fixtures, or other property of Tenant left in the Premises after the end
of this Lease shall be deemed abandoned, unless Landlord and Tenant have
otherwise agreed, and title to such property shall automatically pass to and be
vested in Landlord. Tenant agrees that it will, upon Landlord's request, execute
such bills of sale or other evidences of title to such property as Landlord may
request.
29. LIMITATION ON LANDLORD'S LIABILITY. Any liability of Landlord to Tenant for
any default by Landlord under the terms of this Lease shall be limited to the
interest of Landlord in the Premises and Landlord shall not be personally liable
for any deficiency judgment, and none shall be sought or entered.
30. ATTORNEY'S FEES. Should either party employ an attorney or attorneys to
enforce any of the provisions hereof or to protect its interest in any manner
arising under this Lease, or to recover damages for the breach of this Lease,
the nonprevailing party in any action pursued in courts of competent
jurisdiction (the finality of which is not legally contested) agrees to pay to
the prevailing party all reasonable costs, damages, and expenses, including
attorney's fees, expended or incurred in connection therewith (including any
costs related to any appeals thereof), to be fixed by the court and not by a
jury.
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31. NET LEASE. It is the intention of Landlord and Tenant that rental shall be
absolutely net to the Landlord; that all costs, expenses and obligations of
every kind (except as expressly set forth in this Lease) relating directly or
indirectly in any way, foreseen and unforeseen, to Tenant's use, occupancy and
possession of the Premises, which may arise or become due during the term of
this Lease shall be paid by Tenant; and that Landlord shall be indemnified by
Tenant against all such costs, expenses, and obligations.
32. TAX CREDITS, ABATEMENTS, REDUCTIONS AND OTHER GOVERNMENTAL ENHANCEMENTS. In
the event that Tenant, because of public policy, contractual agreement with any
taxing jurisdiction, or law, is exempt from payment of Taxes or any portion
thereof, or is entitled to an abatement or reduction of Taxes as a result
thereof, and such exemption, abatement, or reduction results in an exemption,
abatement, or reduction of Taxes for the Premises, then to the full extent of
such exemption, abatement or reduction, the amounts paid by Tenant for Taxes
shall be equally reduced. In the event the Premises qualifies for other
enhancement benefits from any taxing jurisdiction, or any municipal, county,
state or federal instrumentality, governmental or quasi-governmental agency,
department or authority on account of Tenant's execution of this Lease,
construction of improvements in the Premises, or additional jobs resulting from
Tenant's operations in the Premises, then such enhancement benefits shall inure
to the sole and exclusive benefit of Tenant. Landlord shall upon written notice
from Tenant and approval of same (not to be unreasonably withheld) reasonably
cooperate with Tenant in Tenant's efforts to qualify for, and receive, any such
tax exemptions, tax abatements, tax reductions and enhancement benefits.
33. UNPERFORMED COVENANTS OF LANDLORD MAY BE PERFORMED BY TENANT. If Landlord
shall fail to perform any of the terms, provisions, covenants or conditions to
be performed or complied with by Landlord pursuant to this Lease, or if Landlord
should fail to make any payment which Landlord agrees to make, and any such
failure shall if it relates to a matter which is not of an emergency nature,
remain uncured for a period of 30 days after Tenant shall have served upon
Landlord written notice of such failure, or for a period of 24 hours after
service of such written notice if in Tenant's judgment reasonably exercised such
failure relates to a matter which is of an emergency nature, then Tenant may at
Tenant's option perform any such term, provision, covenant or condition or make
any such payment, and the full amount of the cost and expense entailed, or the
payment so made, shall immediately be owing by Landlord to Tenant, and Tenant
shall have the right to seek reimbursement therefor from Landlord.
34. RIGHT TO ENJOIN. In the event of any violation or threatened violation by
Landlord of any term, restriction, condition or covenant of the terms of this
Lease, Tenant shall have the right, in addition to any other remedies available
to it at law or in equity, to enjoin such violation or threatened violation in a
court of competent jurisdiction. In the event of any violation or threatened
violation by Tenant of any term, restriction, condition or covenant of the terms
of this Lease,
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Landlord shall have the right, in addition to any other remedies available to it
at law or in equity, to enjoin such violation or threatened violation in a court
of competent jurisdiction.
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EXECUTED as of the _________ day of _____________________, 2000.
LANDLORD:
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Xxxxxxx X. Xxxxx
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Xxxxxxx Xxxxx
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EXECUTED as of the _________ day of _____________________, 2000.
TENANT:
GOVERNMENT RECORDS SERVICES, INC.,
a Texas corporation
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By:
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Its:
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22
EXHIBIT A
DESCRIPTION OF PREMISES
23
GUARANTY
In order to induce Landlord to execute that certain lease agreement
dated as of ___________, 2000, between XXXXXXX X. XXXXX AND XXXXXXX XXXXX,
having an address of 0000 Xxxxxxxx Xxxxx, Xxxxxx, Xxxxx 00000 as ("LANDLORD"),
and GOVERNMENT RECORDS SERVICES, INC., a Texas corporation, having an address of
0000 Xxxx Xxxxxxxxxxx Xxxx, Xxxxxx, Xxxxx as ("TENANT") (the "LEASE"), the
undersigned, Tyler Technologies, Inc., a Delaware corporation ("TYLER"), hereby
guarantees to Landlord, his heirs, successors and assigns, the full and prompt
payment by Tenant of all rent and other charges to be paid by Tenant under or
pursuant to the terms of the Lease, and the complete and timely performance by
Tenant of all the terms, conditions, covenants and agreements to be performed by
Tenant under or pursuant to the terms of the Lease. This guaranty by Tyler is
absolute and unconditional.
Tyler waives notice of acceptance of this agreement of guaranty, and
waives diligence or presentment on the part of Landlord in the enforcement of
any liability, obligation or duty guaranteed hereby.
Tyler agrees that the validity of this agreement of guaranty shall not
in any way be terminated, affected or impaired by reason of any waiver of or
failure to enforce any of the rights or remedies of Landlord contained in the
Lease, or by reason of any extension of time or other forbearance granted to
Tenant by Landlord.
Tyler agrees that, at the option of Landlord, Tyler may be joined in
any action or proceedings commenced against Tenant in connection with and based
upon any provisions of the Lease, and that recovery may be had against Tyler in
such action or proceedings, or in any independent action or proceedings against
Tyler, without requirement that Landlord, and his successors or assigns, first
assert, prosecute, or exhaust any remedy or claim against Tenant.
In the event of any bankruptcy, reorganization, winding up or similar
proceedings with respect to Tenant, no limitation on its liability under the
Lease which may now or hereafter be imposed or permitted by any federal, state,
or other statute, law, regulation, or judicial or administrative determination
applicable to such proceedings, shall in any way limit Tyler's obligations
hereunder.
TYLER TECHNOLOGIES, INC.
By:
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Its:
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Date:
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