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EXHIBIT 10.8
OFFICE LEASE AGREEMENT
STATE OF TEXAS Section
COUNTY OF XXXXX Section
THIS LEASE AGREEMENT, made and entered into as of the 16 day of MARCH, 1996
by and between the Landlord and Tenant hereinafter named.
WITNESSETH:
1. Definitions and Basic Provisions. The following definitions and basic
provisions shall be used in conjunction with and limited by the reference
thereto in the provisions of this lease:
a. "Landlord": Xxxxxx Plaza, Inc.
b. "Tenant": Xxxxxxxx Industries, Inc.
c. "Premises": 0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxx 00000
as generally outlined on the plan attached hereto as Exhibit "A". The
term "rentable area" as used herein, shall refer to (i) (in the case of
single-tenancy floor, all floor area measured from the outside surface of the
outer glass of the building to the outside surface of the opposite outer wall,
excluding only those areas within the outside walls used for building stairs,
fire towers, elevator shafts, flues, vents, stacks, pipe shafts and vertical
ducts, but including any such areas which are for the specific use of a
particular tenant, such as special stairs or elevators; and (ii) in the case
of a partial floor, all floor areas within the outside surface of the outer
glass enclosing the tenant-occupied portion of the floor and measured to the
midpoint of the walls separating areas leased by or held for lease to other
tenants or from areas devoted to corridors, elevator foyers, restrooms,
mechanical rooms, janitor closets, vending areas and other similar facilities
for the use of all tenants on the particular floor (hereinafter sometimes
called "common areas"). No deductions from rentable areas are made for
columns or projections necessary to the building. The rentable area in the
premises has been calculated on the basis of the foregoing definition and is
hereby stipulated for all purposes hereof to be 2596 square feet, whether the
same should be more or less as a result of minor variations resulting from
actual construction and completion of the premises for occupancy so long as
such work is done in accordance with the terms and provisions hereof. The
total rentable area of the building shall be 46,889 square feet.
d. "Lease term": A period of 60 months, commencing on MAY 1,
1996 (the "commencement date") and ending on APRIL 30, 2001.
e. "Basic rental": $24,672.00 per year subject to adjustment as
provided herein.
f. "Monthly rental installment": $2,056.00
g. "Security deposit": $-O-
h. "Permitted use": An office "Development": the property
owned by Landlord known as Xxxxxx Plaza, Inc., having a street
address of 1121 and 0000 Xxxxxx Xxxx, Xxxxxxxx, Xxxxx Xxxxxx,
Xxxxx, including the building, all land under and surrounding
the building, and all other improvements thereto.
2. LEASE GRANT. Landlord, in consideration of the rent to be paid and the
other covenants and agreements to be performed by the Tenant and upon the terms
and conditions hereinafter stated, does hereby lease, demise and let unto Tenant
the premises (as defined in Paragraph 1.c. hereof) commencing on the
commencement date (as defined in Paragraph 1.d. hereof, or as adjusted as
hereinafter provided) and ending on the last day of the lease term, unless
sooner terminated as herein provided. Landlord shall not be liable for failure
to give possession of any previous tenant, tenants, or occupants of same, nor
shall such failure impair the validity of this lease, and Tenant agrees to
accept possession of the premises on such date as Landlord is able to tender the
same and such date shall continue for the lease term described in Paragraph 1.d.
hereof. Landlord hereby waives payment of monthly rental installments covering
any period prior to the tendering of possession of the premises to Tenant
hereunder. If Tenant occupies the premises prior to the commencement date
specified in Paragraph 1.d., the commencement date shall be deemed to be changed
to coincide with the date of Tenant's occupancy; however, the expiration date of
the lease shall remain unchanged, and the amount of the basic rental shall be
increased prorata based upon the increased lease term. By occupying the
premises, Tenant shall be deemed to have accepted the same as suitable for the
purpose herein intended and to have acknowledged that the same comply fully with
Landlord's covenants and obligations.
3. RENT. In consideration of this lease, Tenant promises and agrees to pay
Landlord the basic rental (as defined in Paragraph 1.e. hereof) without
deduction, counterclaim, or setoff. It is agreed that, notwithstanding anything
to the contrary, the premises herein are leased for the basic rental for the
lease term hereof, payable at the time of the making of this lease and that the
provisions herein contained for the payment of such rent in monthly rental
installments (as defined in Paragraph 1.f. hereof) are for the convenience of
the Tenant only, and that, upon default in the payment of any monthly rental
installment as herein allowed, the whole of the rent hereby reserved for the
whole of the lease term herein provided for and then remaining unpaid shall, at
the option of the Landlord, become due and payable without notice or demand.
One such monthly rental installment, together with the security deposit (as
defined in Paragraph 1.g. hereof), shall be payable by Tenant to Landlord
contemporaneously with the execution hereof, and a like monthly rental
installment shall be due and payable without notice or demand on or before the
first
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day of each succeeding calendar month during the term hereof. A monthly rental
installment for any fractional month at the beginning or the end of the lease
term shall be prorated.
IF THE MONTHLY RENTAL INSTALLMENT IS NOT RECEIVED BY THE LANDLORD ON OR
BEFORE THE 5TH DAY OF THE MONTH FOR WHICH SAID MONTHLY RENTAL INSTALLMENT IS
DUE, a service charge of $35.00 of the monthly rental installment shall become
due and payable in addition to the monthly rental installment owed. Said service
charge is for the purpose of reimbursing Landlord for the extra costs and
expenses incurred in connection with the handling and processing of late monthly
installment payments.
The security deposit shall be held by Landlord without liability for
interest and as security for the performance by Tenant of Tenant's covenants and
obligations under this lease, it being expressly understood that such deposit
shall not be considered an advance payment of rental or a measure of Landlord's
damages in case of default by Tenant. Upon the occurrence of any event of
default by Tenant, Landlord may, from time to tome, without prejudice to any
other remedy, use such deposit to the extent necessary to make good any
arrearages of rent and any other damage, injury, expense or liability caused to
Landlord by such event or default. Following any such application of the
security deposit, Tenant shall pay to the Landlord on demand the amount so
applied in order to restore the security deposit to its original amount. If
Tenant is not then in default hereunder, any remaining balance of such deposit
shall be returned by Landlord to Tenant upon termination of this lease. If
Landlord transfers its interest in the premises during the lease term, Landlord
may assign the security deposit to the transferee and thereafter shall have no
further liability for the return of such security deposit.
4. SERVICES.
a. Landlord agrees to furnish Tenant, while occupying the premises, at
Landlord's sole cost and expense: (i) hot and cold water at those points of
supply provided for general use of tenants; (ii) electrical current for Tenant's
use and occupancy of the premises to the extent reasonably deemed to be standard
by Landlord, provided, however, that all costs for extraordinary or unusual
demand for electrical service shall be borne by Tenant; (iii) heating and air
conditioning at such times as Landlord normally furnishes such services to all
tenants of the building, and at such temperatures and in such amounts as are
reasonably considered by Landlord to be standard; (iv) periodic janitorial
services; (v) replacement of building standard light bulbs and tubes.
Initially, the cost of such services shall be paid by Landlord; provided,
however, that Landlord is entitled to be partially reimbursed for the costs that
it incurs in furnishing these services in accordance with terms and provisions
of Paragraph 5 hereinabove.
b. Landlord does not warrant that any of said specific services will be
free from interruption or stoppage, but nevertheless, Landlord shall use
reasonable diligence to resume any such interrupted or stopped service. Anything
to the contrary notwithstanding, no failure, to any extent, to furnish such
services or any stoppage or interruption of these defined services shall render
Landlord liable in any respect for damages to either person, property or
business, nor shall any such failure, interruption or stoppage of such services
be deemed or construed as an eviction, actual or constructive, of a Tenant, nor
work an abatement of rent, nor relieve Tenant from the obligation to fulfill any
covenant or agreement contained in this lease.
5. LEASEHOLD IMPROVEMENTS. Landlord agrees to install, at Landlord's cost
and expense, except as otherwise stated herein, the improvements described in
Exhibit "B" attached hereto. Landlord has made no representations as to the
condition of the premises or the building, and has made no agreements to
remodel, repair or decorate the premises or the building, except as expressly
set forth herein.
6. USE. Tenant shall use the premises only for the permitted use (as
defined in Paragraph 1.h. hereof). Tenant will not occupy or use the premises,
or permit any portion of the premises to be occupied or used for any business,
or permit any portion of the premises to be occupied or used for any business or
purpose other than the permitted use, or for any use or purpose which is
unlawful in part or in whole or deemed to be disreputable in any manner or extra
hazardous on account of fire, nor will Tenant permit anything to be done which
will in any way increase the rate of fire insurance on the building or its
contents; and in the event that there shall be any increase in the rate of
insurance on the building or its contents created by Tenant's acts or conduct of
business, then such acts of Tenant shall be deemed to be an event of default
hereunder and Tenant hereby agrees to pay to Landlord the amount of such
increase on demand, and acceptance of such payment shall not constitute a waiver
of any of Landlord's other rights provided herein. Tenant will conduct its
business and control its agents, employees and invitees in such a manner as not
to create any nuisance, nor interfere with, annoy or disturb other tenants or
Landlord in management of the building. Tenant will maintain the premises in a
clean, healthful and safe condition and will comply with all laws, ordinances,
orders, rules and regulations (state, federal, municipal and other agencies or
bodies having any jurisdiction thereof) with reference to use, condition or
occupancy of the premises. Tenant will not, without the prior written consent
of the Landlord, paint, install lighting, window coverings or decoration or
install any signs, window or door lettering, or advertising media of any type on
or about the premises or any part thereof. Should Landlord agree in writing to
any of the foregoing items in the preceding sentence, Tenant will maintain such
permitted items in good condition and repair at all times. Tenant shall not have
alcohol or illegal drugs on premises.
7. REPAIRS AND MAINTENANCE.
a. By Landlord: Landlord shall, at its expense, maintain in good
repair and condition, except for reasonable wear and tear, only the roof,
foundation, heating and air conditioning systems, common areas, plumbing,
elevators (if any), fire protection sprinklers (if any), the structural
soundness of the exterior walls, the paving outside the building, and the
landscaping. Landlord shall be responsible for pest eradication. Landlord shall
also be responsible for replacement or repair of windows and glass damaged due
to structural movement, weather conditions, and vandalism by outside persons or
Landlord's agents.
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Tenant shall give immediate written notice to Landlord of the need for repairs
or corrections and Landlord shall proceed promptly to make such repairs or
corrections. Landlord's liability hereunder shall be limited to the cost of
such repairs or corrections.
b. By Tenant: Tenant shall, at its expense and risk, maintain all
other parts of the building, the premises and related facilities in good repair
and condition, including but not limited to repairs (including all necessary
replacements) to the windows, window glass, plate glass, doors and the interior
of the premises in general. Tenant will not in any manner deface or injure the
building, the premises or related facilities and will pay the cost of repairing
any damage or injury done by Tenant or Tenant's agents, employees or invitees.
Tenant shall, throughout the term of this lease, take good care of the
building, the premises and related facilities and keep them free from waste and
nuisance of any kind. If Tenant shall fail to make any repair required
hereunder (including all necessary replacement) within fifteen (15) days after
written notification to do so, Landlord may, at its option, make such repair,
and Tenant shall, upon demand therefor, pay Landlord for the cost thereof
together with interest on any such cost which remains unpaid following such
demand at the highest rate allowed by law.
8. Alterations and Improvements. At the expiration or earlier
termination of this lease, Tenant shall deliver up the premises with all
improvements located thereon (except as otherwise herein provided) in good
repair and condition, reasonable wear and tear expected, and shall deliver to
Landlord all keys to the premises. The cost and expense of any repairs
necessary to restore the condition of the premises to the condition in which
they are to be delivered to Landlord shall be borne by Tenant. Tenant will
not make or allow to be made any alterations or physical additions in or to
the premises without the prior written consent of Landlord, which consent
shall not be unreasonably withheld as to non-structural alterations. All
alterations, additions or improvements (whether temporary or permanent in
character) made in or upon the premises, either by Landlord or Tenant, shall
be Landlord's property on termination of this lease and shall remain on the
premises, without compensation to Tenant. All furniture, movable trade
fixtures and equipment installed by Tenant may be removed by Tenant at the
termination of this lease if Tenant so elects, and shall be removed if
required by Landlord, or if not so removed shall, at the option of Landlord,
become the property of Landlord. All such installments, removals and
restoration shall be accomplished in a good and workmanlike manner so as not
to damage the premises or the primary structure or structural qualities of the
building, or the plumbing, electrical lines or other utilities.
9. Relocation. If the premises covered by this lease constitute less
than 20% of the net rentable area of the floor on which the premises is
located, Landlord reserves the right to relocate the Tenant to other space
within the development comparable to the premises by giving Tenant prior
written notice to Landlord's intention to relocate. Landlord intends to
exercise needs of other Tenants who occupy more than 20% of the net rentable
area of the floor and/or to be able to make a full floor available for lease by
a single Tenant.
10. Common Areas. The use and occupancy by Tenant of the premises
shall include the use in common with others entitled thereto of the common
areas, parking areas, service roads, loading facilities, sidewalks; however, to
the terms and conditions of this agreement and to reasonable rules and
regulations for the use thereof as prescribed from time to time by landlord.
All common areas described above shall at all times be subject to the
exclusive control and management of Landlord, and Landlord shall have the right
from time to time to establish, modify and enforce reasonable rules and
regulations with respect to all facilities and areas mentioned in this
paragraph. Landlord shall reserve the right to construct, maintain and operate
lighting facilities; from time to time to change the area, location, and
arrangements of parking areas and other facilities hereinabove referred to; and
to restrict parking by tenants, their officers, agents, and employees to
employee parking areas.
All common areas and facilities not within the premises which Tenant may
be permitted to use and occupy, are to be used and occupied under a revocable
license, and if the amount of such areas be diminished, Landlord shall not be
subject to liability nor shall Tenant be entitled to any compensation or
diminution or abatement of rent, nor shall such diminution of such areas be
deemed a constructive or actual eviction of Tenant.
11. Assignment and Subletting. In the event Tenant desires to assign
or sublet the premises or any part thereof, Tenant shall give Landlord written
notice of such desire at least sixty (60) days prior to the date on which
Tenant desires to make such assignment or sublease. Landlord shall within
thirty (30) days following receipt of such notice notify Tenant in writing that
Landlord elects either (i) to terminate this lease as to the space so affected
as of the date so specified by Tenant, in which event Tenant will be relieved
of all further obligations hereunder as to such space; or (ii) to permit Tenant
to assign or sublet such space, subject, however, to subsequent written
approval of the proposed assignee or sublessee by Landlord, which approval
shall not be unreasonably withheld. If Landlord should fail to notify Tenant
in writing of such election within said thirty-day period, Landlord shall be
deemed to have elected (ii) above, but subsequent written approval by Landlord
of the proposed assignee or sublessee shall be required. If the rental rate
agreed to by Tenant and its subtenant is greater than the rental rate payable
hereunder, such excess rental shall be deemed to be additional rental owed by
Tenant to Landlord and shall be paid to Landlord at the same time and in the
same manner as the basic rental. Consent by Landlord to one or more
assignments or sublettings shall not operate as a waiver of Landlord's rights
as to any subsequent assignments and subletting. Notwithstanding any
assignment or subletting, Tenant and any guarantor or Tenant's obligations
under this lease shall at all times remain fully responsible and liable for the
payment of the rent herein specified and for compliance with all of Tenant's
other obligations under this lease. In the event of the transfer and
assignment by Landlord of its interest in this lease and the building
containing the premises, Landlord shall thereby by released from any further
obligations hereunder, and Tenant agrees to look solely to such successor in
interest of the Landlord for performance of such obligations.
Tenant shall not mortgage, pledge or otherwise encumber its interest in
this lease or in the premises.
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12. INDEMNITY. Landlord shall not be liable for and Tenant will
indemnify and save harmless Landlord from all fines, suits, claims, demands,
losses, and actions (including attorney's fees) for any injury to person or
damage to or loss of property on or about the premises of the Development
caused by the negligence or misconduct or breach of this lease by Tenant, its
agents, employees, subtenants, invitees or by any other person entering the
building, the premises or the Development, under express or implied invitation
of Tenant, or arising out of Tenant's use of the building, the premises, or the
Development. Landlord shall not be liable or responsible for any loss or
damage to any property, or death or injury to any person, occasioned by theft,
fire, Act of God, public enemy, injunction, riot, strike, insurrection, war,
court order, requisition of any governmental body or authority, by other
tenants of the building or the Development, or any other matter beyond the
control of Landlord, or for any injury or damage or inconvenience which may
result from the repair or alteration of any part of the building, the premises,
or the Development, or from the failure to make repairs, or from any cause
whatsoever except Landlord's gross negligence.
14. ESTOPPEL CERTIFICATE. Tenant agrees on the Commencement Date, and
from time to time thereafter upon not less than five (5) days prior written
request by Landlord, to execute, acknowledge and deliver to Landlord a
statement in writing, certifying: (i) that this lease is unmodified and in full
force and effect (or, if there have been modifications, that this lease is in
full effect as modified, and setting forth such modifications); (ii) that
Tenant has no defenses, offsets or counterclaims against its obligations to pay
the basic rental and adjusted rental and its obligations to perform its other
covenants under this lease; (iii) that there are no uncured defaults of
landlord or Tenant under this lease; and (iv) the dates to which the basic
rental, additional rental and other charges have been paid. Any such statement
delivered pursuant to this Paragraph 16 may be relied upon by any prospective
purchaser or mortgagee of the Development, or any portion thereof, or any
prospective assignee of such mortgagee.
15. CASUALTY INSURANCE. Landlord shall at all times during the term of
this lease maintain a general policy or policies of insurance. Landlord shall
not be obligated to insure any furniture, equipment, machinery, goods or
supplies not covered by this lease which Tenant may bring or obtain upon the
premises, or any additional improvements which Tenant may construct thereon.
16. INSPECTION. Landlord or Landlord's representatives shall have the
right to enter into and upon any and all parts of the premises at reasonable
hours (i) to inspect same or to clean or make repairs or alterations or
additions as Landlord may deem necessary (but without any obligation to do so,
except as expressly provided for herein), or (ii) to show the premises to
prospective tenants, purchasers or lenders; and Tenant shall not be entitled to
any abatement or reduction of rent by reason thereof, nor shall such be deemed
to be an actual or constructive eviction of Tenant.
17. CONDEMNATION. If, during the term of this lease, or any extension
or renewal thereof, all of the premises should be taken for any public or
quasi-public use under any governmental law, ordinance or regulation or by
right of eminent domain or by private purchase in lieu thereof, this lease
shall terminate and the rent shall be abated during the unexpired portion of
this lease, effective on the date physical possession is taken by the
condemning authority, and Tenant shall have no claim against Landlord for the
value of any unexpired term of this lease.
In the event a portion but not all 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 sale in lieu thereof
and the partial taking or condemnation shall render the premises unsuitable
for Tenant's business, then Landlord shall have the option, in its sole
discretion, of terminating this lease, or at Landlord's sole risk and expense,
restoring and reconstructing the premises to the extent necessary to make same
reasonably tenantable. Should Landlord elect to restore the premises, this
lease shall continue in full force and effect with the rent payable during the
unexpired portion of the lease term adjusted to such an extent as may be fair
and reasonable under the circumstances, and Tenant shall have no claim against
Landlord for the value of any interrupted portion of this lease.
In the event of any condemnation or taking, total or partial, Tenant
shall not be entitle to any part of the award or price paid in lieu thereof,
hereby expressly waiving any right or claim to any part thereof, and Landlord
shall receive the full amount of such award or price.
18. FIRE OR OTHER CASUALTY. In the event that the premises should be
totally destroyed by fire, tornado or other casualty, or in the event the
premises or the building should be so damaged that rebuilding or repairs cannot
be completed within ninety (90) days after the date of such damage, either
Landlord or Tenant may, at its option, terminate this lease, in which event the
rent shall be abated during the unexpired portion of this lease effective with
the date of such damage. In the event the premises should be damaged by fire,
tornado or other casualty covered by Landlord's insurance, and if the necessary
rebuilding or repairs can be completed within ninety (90) days after the date
of such damage, or if such rebuilding or repairs would take more than ninety
(90) days to complete but neither Landlord nor Tenant elects to terminate this
lease, then, in either such event, Landlord shall, within thirty (30) days
after the date of such damage, commence to rebuild or repair the premises and
shall proceed with reasonable diligence to restore the premises to
substantially the same condition in which they were immediately prior to the
happening of the casualty, except that Landlord shall not be required to
rebuild,
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repair or replace any part of the furniture, equipment, fixtures and other
improvements which may have been placed by Tenant or other tenants within the
building or the premises, or related facilities.
In the event that the premises are totally untenantable, Landlord shall
xxxxx the rent during the time the premises are unfit for occupancy. If the
premises are not totally untenable, Landlord shall allow Tenant a fair
diminution of rent during the time the premises are unfit for occupancy. In
the event any mortgages under a deed of trust, security agreement or mortgage
on the Development or the premises should require that the insurance proceeds
be used to retire the mortgage debt, Landlord shall have no obligation to
rebuild and this lease shall terminate upon notice to Tenant. Any insurance
which may be carried by Landlord or Tenant against loss or damage to the
Development or to the premises shall be for the sole benefit of the party
carrying such insurance and under its sole control.
19. HOLDING OVER. IT IS AGREED THAT LEASE AGREEMENT SHALL
AUTOMATICALLY RENEW FOR SIXTY (60) MONTHS AT A RATE NOT TO EXCEED FOUR PERCENT
(4%) APRIL 30, 20001 (DATE); IF NOT CANCELED, IN WRITING, BY EITHER LESSOR OR
LESSEE 30 DAYS PRIOR TO EXPIRATION DATE.
Should Tenant, or any of its successors in interest, continue to hold
the premises, or any part thereof, after the expiration or automatic extension
of this lease, unless otherwise agreed in writing, such holding over shall
constitute and be construed as a tenancy from month to month only, at a
monthly rental equal to twice the sum of the monthly rental installment, plus
the amount of the most current rental adjustment which may have been made
thereto pursuant to Paragraph 4 and 5 hereof. The inclusion of the preceding
sentence shall not be construed as Landlord's consent for the Tenant to hold
over.
21. EVENTS OF DEFAULT. The following events shall be deemed to be
events of default by Tenant under this lease:
a. Tenant shall fail to pay any monthly rental installment or any
portion of the basic rental hereby reserved when due and such failure shall
continue for a period of five days after notice by Landlord;
b. Tenant shall fail to comply with any term, provision or covenant
of this lease, other than the payment of rent, and shall not cure such failure
within five (5) days after written notice thereof to Tenant;
c. Tenant shall make an assignment for the benefit of creditors;
d. Tenant shall file a petition under any section or chapter of
National Bankruptcy Act, as amended, or under any similar law or statute of the
United States or any State thereof, or Tenant shall be adjudged a debtor or
insolvent in any proceeding filed against Tenant thereunder and such
adjudication shall not be vacated or set aside within thirty (30) days;
e. A receiver or Trustee shall be appointed for all or
substantially all of the assets of Tenant and such receivership shall not be
terminated or stayed within thirty (30) days;
f. Tenant shall desert or vacate any substantial portion of the
premises for a period of five (5) or more days.
22. REMEDIES. Upon the occurrence of any event of default specified in
Paragraph 23 hereof, 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, 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 and expel or remove Tenant
and any other person who may be occupying said premises or any part thereof, by
force if necessary, without being liable for prosecution or any claim of
damages thereof. 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, including the loss of the basic rental then remaining unpaid;
b. Enter upon and take possession of the premises and expel or
remove Tenant and any other person who may be occupying the premises of any
part thereof, by force if necessary, without being liable for prosecution or
any claim for such damages therefor, and if Landlord so elects, relet the
premises on such terms as Landlord shall deem advisable and receive the rent
thereof. Tenant agrees to pay to Landlord or demand any deficiency in basic
rental that may arise by reason of such reletting; and
c. Enter upon the premises by force if necessary, without being
liable for prosecution of any claim for damages thereof, and do whatever Tenant
is obligated to do under the terms of this lease, and Tenants agrees to
reimburse Landlord on demand for any expenses which Landlord may incur in thus
effective compliance with Tenant's obligations under this lease, and Tenant
further agrees that Landlord shall not be liable for any damages resulting from
such action.
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No re-entry or taking possession of the premises by Landlord shall
be construed as an election on its part to terminate this lease, unless a
written notice of such intention be given to Tenant. Notwithstanding any such
reletting or re-entry or taking possession, Landlord may at any time
thereafter elect to terminate this lease for a previous default. Pursuit of
any of the foregoing remedies shall not preclude pursuit of any of the other
remedies herein provided or constitute a forfeiture or waiver of any rent due
to Landlord hereunder or of any provisions and covenants herein contained.
Landlord's acceptance of rent following an event of default hereunder shall
not be construed as Landlord's waiver of such event of default. No waiver by
Landlord of any violation or breach of any of the terms, provisions, and
covenants herein contained. 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 any other violation or default. The loss
or damage that Landlord may suffer by reason of termination of this lease, or
the deficiency from any reletting of the premises as provided for above shall
include without limitation the expense of recovering possession of the
premises and any repairs undertaken by Landlord following recovery of
possession, and the loss of the basic rental then remaining unpaid.
23. SURRENDER OF PREMISES. No act or thing done by the Landlord or its
agents during the term hereby granted shall be deemed an acceptance of a
surrender of the premises, and no agreement to accept a surrender of the
premises shall be valid unless same be made in writing and subscribed by the
Landlord.
24. ATTORNEY'S FEES. Tenant shall pay to Landlord upon demand all
attorney's fees and all expenses and court costs of Landlord incurred in
enforcing any of the obligations of Tenant under this lease.
25. LANDLORD'S LIEN. In addition to the statutory Landlord's lien,
Landlord shall have, at all times, a valid security interest to secure payment
of all rentals and other sums of money becoming due hereunder from Tenant, and
to secure payment of any damages or loss which Landlord may suffer by reason of
breach by Tenant of any covenant, agreement or condition contained herein, upon
all goods, wares, equipment, fixtures, furniture, improvements and other
personal property of Tenant but excluding the financial portfolios of Tenant's
customers presently, or which may hereafter be situated on the demised
premises, and all proceeds therefrom, and such property shall not be removed
therefrom without the consent of the Landlord until all arrearages in rent, as
well as any and all other sums of money then due to Landlord hereunder, shall
first have been paid and discharges and all the covenants, agreements and
conditions hereof have been fully complied with and performed by Tenant. Upon
the occurrence of an event of default by Tenant, Landlord may, in addition to
any other remedies provided herein, enter upon the demised premises and take
possession of any and all goods, wares, equipment, fixtures, furniture,
improvements and other personal property of Tenant but excluding the financial
portfolios of Tenant's customers situated on the premises, without liability
for trespass or conversion, and sell the same at public or private sale, with
or without having such property at the sale, after giving Tenant reasonable
notice of the time and place of any public sale or of the time after which any
private sale is to be made, at which sale Landlord or its assigns may purchase,
unless otherwise prohibited by law. Unless otherwise provided by law, and
without intending to exclude any other manner of giving Tenant reasonable
notice, the requirement of reasonable notice shall be met if such notice is
given in the manner prescribed in Paragraph 30 of this lease at least five (5)
days before the time of sale. The proceeds from any such disposition, less any
and all expenses connected with the taking of possession, holding and selling
of the property (including reasonable attorneys' fees and other expenses), shall
be applied as a credit against the indebtedness secured by the security interest
granted in this paragraph. Any surplus shall be paid to Tenant or as otherwise
required by law; and Tenant shall pay any deficiencies forthwith. Landlord's
statutory lien for rent is not hereby waived, the security interest herein
granted being in addition and supplementary thereto.
26. MECHANIC'S LIEN. Tenant will not permit any mechanic's lien
or liens to be placed upon the premises or the Development during the term
hereof caused by or resulting from any work performed, materials furnished or
obligation incurred by or at the request of Tenant, and in the case of the
filing of any such lien, Tenant will promptly pay same. If default in payment
thereof shall continue for twenty (20) days after written notice thereof from
Landlord to the Tenant, the Landlord shall have the right and privilege at
Landlord's option of paying the same or any portion thereof without inquiry as
to the validity thereof, and any amounts so paid, including expenses and
interest, shall be so much additional indebtedness hereunder due from Tenant to
Landlord and shall be repaid to Landlord immediately on rendition of xxxx
therefor, together with interest thereon at the highest rate allowed by law.
27. WAIVER OF SUBROGATION. Anything in this lease to the contrary
notwithstanding, the parties hereto waive any and all rights of recovery,
claim, action or cause of action, against each other, their agents, officers,
and employees, for any loss or damage that may occur to the premises hereby
demised, or any improvements thereto, of the Development of which the premises
are a part, by reason of fire, the elements, or any cause which could be
insured against under the terms of standard fire and extended coverage
insurance policies, regardless of cause or origin, including negligence of the
parties hereto, their agents, officers, and employees.
28. NOTICES. Each provision of this lease, or of any applicable
governmental laws, ordinances, regulation, and other requirements with
reference to the sending, mailing or delivery of any notice, or with reference
to the making of any payment by Tenant to Landlord, shall be deemed to be
complied with when and if the following steps are taken:
a. All rent and other payment required to be made by Tenant to
Landlord hereunder shall be payable to Landlord in Xxxxx County, Longview,
Texas, at the address hereinbelow set forth, or at such
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other address as Landlord may specify from time to time by written notice
delivered in accordance herewith;
b. Any notice or document required to be delivered hereunder shall
be deemed to be delivered if actually received and whether or not received when
deposited in the United States mail, postage prepaid, certified or registered
mail (with or without return receipt requested) addressed to the parties hereto
at the respective addresses set out beneath their names below, or at such other
address as they have heretofore specified by written notice delivered in
accordance herewith:
===============================================================================================
LANDLORD MANAGING AGENT TENANT
===============================================================================================
Xxxxxx Plaza, Inc. Xxxxxx Plaza, Inc. Xxxxxxxx Industries, Inc.
P. O. Box 3389 0000 Xxxxxx Xxxx, #000 0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxx,XX 75606-500 Longview,TX 75601 Xxxxxxxx, Xx. 00000
(000) 000-0000 (000) 000-0000 758-3431
===============================================================================================
29. FORCE MAJEURE. Whenever a period of time is herein prescribed for
action to be taken by Landlord, the Landlord shall not be liable or responsible
for, and there shall be excluded from the computation of any such period of
time, any delays due to strikes, riots, Acts of God, shortages of labor or
materials, war, governmental laws, regulations or restrictions or any other
causes of any kind whatsoever which are beyond the control of Landlord.
30. SEVERABILITY. If any clause or provision of this lease is illegal,
invalid or unenforceable under present or future laws effective during the term
of this lease, then and in the event, it is the intention of the parties hereto
that the remainder of this lease shall not be affected thereby, and it is also
the intention of the parties to this lease that in lieu of each clause or
provision of this lease that is illegal, invalid, or unenforceable, there be
added as a part of this lease a clause or provision as similar in terms to such
illegal, invalid or unenforceable clause or provision as may be possible and be
legal, valid and enforceable.
31. ENTIRE AGREEMENT; AMENDMENTS; BINDING EFFECT. This lease contains
the entire agreement between the parties and may not be altered, changed or
amended, except by instrument in writing signed by both parties hereto. No
provision of this lease shall be deemed to have been waived by Landlord unless
such waiver be in practice which may grow up between the parties in the
administration of the terms hereof be construed to waive or lessen the right
of Landlord to insist upon the performance by Tenant in strict accordance with
the terms hereof. 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 successors in interest and legal
representatives, except as otherwise herein expressly provided.
32. QUIET ENJOYMENT. Provided Tenant has performed all of the terms,
covenants, agreements and conditions of this lease, including the payment of
rent, to be performed by Tenant, Tenant shall peaceably and quietly hold and
enjoy the premises for the term hereof, without hindrance from Landlord, subject
to the terms and conditions of this lease.
33. RULES AND REGULATIONS. Tenant and Tenant's agents, employees, and
invitees will comply fully with all requirements of the rules and regulations of
the Development and related facilities which are attached hereto as Exhibit "C"
and made a part hereof as though fully set out herein. Landlord shall at all
times have the right to change such rules and regulations or to promulgate other
rules and regulations in such reasonable manner as may be deemed advisable for
safety, care or cleanliness of the Development, the premises, or related
facilities, and for preservation of good order therein, all of which rules and
regulations, changes and amendments will be forwarded to Tenant in writing and
shall be carried out and observed by Tenant. Tenant shall further be
responsible for the compliance with such rules and regulations by the employees,
servants, agents, visitors and invitees of Tenant.
34. BROKER'S OR AGENT'S COMMISSION. Tenant represents and warrants
that there are no claims for brokerage commission of finder's fees in
connection with the execution of this lease, except as listed below, and Tenant
agrees to indemnify and hold harmless Landlord against all liabilities and
costs arising from such claims, including without limitation attorney's fees in
connection therewith.
35. GENDER. Words of any gender used in this lease shall be held and
construed to include any other gender, and words in the singular number shall
be held to include the plural, unless the context otherwise requires.
36. GUARANTY, JOINT AND SEVERAL LIABILITY. If there be more than one
Tenant, the obligations imposed upon the Tenant shall be joint and several. If
there be a guarantor of Tenant's obligations hereunder, the obligations
hereunder imposed upon Tenant shall be the joint and several obligations of
Tenant and such guarantor and Landlord need not first proceed against the
Tenant hereunder before proceeding against such guarantor, nor shall any such
guarantor be released from its guaranty for any reason whatsoever, including
without limitation, in case of any amendments hereto, waivers hereof or failure
to give guarantor any notices hereunder.
37. CAPTIONS. The captions contained in this lease are for convenience
of reference only, and in no way limit or enlarge the terms and conditions of
this lease.
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38. PLACE OF PERFORMANCE. Tenant shall perform all covenants, conditions
and agreements contained herein, including but not limited to payment of rent,
in Xxxxx County, Longview. Any suit arising from or relating to this agreement
shall be brought in Xxxxx County, Texas.
39. NO PERSONAL LIABILITY. Tenant agrees to look solely to Landlord's
interest in the Development for the recovery of any judgment from Landlord, it
being agreed that Landlord, both in its individual corporate capacity and in its
capacity as trustee, and the trust for which the Landlord serves as trustee,
shall never be personally liable for any such judgment.
40. SPECIAL PROVISIONS. NONE
E X E C U T E D AS OF THE DATE FIRST ABOVE WRITTEN.
LANDLORD: TENANT:
XXXXXX PLAZA, INC. XXXXXXXX INDUSTRIES, INC.
/s/ X. X. XXXXXX /s/ XXX XXXXXX
--------------------------------- -------------------------------
By (signature) By (signature)
X. X. Xxxxxx Xxx Xxxxxx
--------------------------------- -------------------------------
Name (please type) Name (please type)
C.E.O. Senior Vice President - Finance
--------------------------------- -------------------------------
Title Title
-------------------------------
By (signature)
-------------------------------
Name (please type)
-------------------------------
Title
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EXHIBIT "A"
Plan showing exact location to be added later and made a part of this lease
agreement.
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EXHIBIT "B"
Final plans and specifications to be agreed to and initiated by both Landlord
and Tenant and made a part of this lease agreement.
The landlord will construct a passage from Suite 124 to the 448 square
feet presently known as Suite 120.
EXHIBIT "C"
1. Landlord agrees to furnish Tenant two keys to the premises without
charge. Additional keys will be furnished at a nominal charge.
2. Tenant will refer all contractors, contractor's representatives and
installation technicians, rendering any service on or to the premises for
Tenant, to Landlord for Landlord's approval and supervision before performance
of any contractual service. This provision shall apply to all work performed in
the building including installation of telephones, telegraph equipment,
electrical devices and attachments and installation of any nature affecting
floors, walls, woodwork, trim, windows, ceilings, equipment or any physical
portion of the building.
3. No Tenant shall at any time occupy any part of the Development as
sleeping or lodging quarters.
4. Tenant shall not place, install or operate on premises or in any part
of the Development, any engine, stove or machinery, or conduct mechanical
operations or xxxx thereon or therein, or place or use in or about premises any
explosives, gasoline, kerosene, oil, acids, caustics, or any other inflammable,
explosive, or hazardous material without prior written consent of Landlord.
5. Landlord will not be responsible for lost or stolen personal
property, equipment, money, or jewelry from Tenant's area or public rooms
regardless of whether such loss occurs when area is locked against entry or not.
6. No bird, fowl, dogs, animals or pets of any kind shall be brought
into or kept in or about the Development.
7. Landlord will not permit entrance to Tenant's offices by use of a
passkey controlled by Landlord, to any person at any time without written
permission by Tenant, except employees, contractors, or service personnel
directly supervised or employed by Landlord.
8. None of the entries, passages, doors, elevators, hallways or
stairways shall be blocked or obstructed, or any rubbish, litter, trash, or
material of any nature placed, emptied, or thrown into these areas, nor shall
such areas be used at any time except for ingress or egress by Tenant, Tenant's
agents, employees or invitees.
9. The water closets and other water fixtures shall not be used for any
purpose other than those for which they were constructed. No person shall
waste water by interfering with the faucets or otherwise.
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10. No person shall disturb the occupants of the building by the use of
any musical instruments, the making of raucous noises, or other unreasonable
use.
11. Nothing shall be thrown out of the windows of the building, or down
the stairways or other passages.
12. Tenant shall not store any materials, equipment, products, etc.,
outside the premises as shown on the plans attached hereto.
13. Tenant shall not erect any sign or insignia upon or in any part of
the Development or other portion of the premises without the prior written
consent of the Landlord.
14. Tenant shall comply with all local and federal codes and ordinances.
In the event of fire or code problems, Tenant shall comply with said
requirements.
15. Tenants and its agents, employees and invitees shall observe and
comply with the driving and parking signs and markers on all the Development
grounds and surrounding areas.
16. Corridor and passage doors when not in use shall be kept closed.
17. All deliveries of other than hand-carried items must be made via the
service entrances and service elevators. Any deliveries of an abnormally large,
bulky or voluminous nature, such as furniture, office machinery, etc., can be
made only after obtaining approval from the Landlord and at those times
specified by the Landlord.
18. Directories will be placed by the Landlord, at Landlord's expense,
in the building and no other directories shall be permitted.
19. No signs, draperies, shutters, window coverings, decorations,
hangings or obstructions of any type shall be placed on the skylights or on any
doors or windows which are visible from outside the premises without the prior
written consent of the Landlord.
20. The Landlord reserves the right to rescind any of these rules and
make such other and further rules and regulations as in the judgment of Landlord
shall from time to time be needed for safety, protection, care, and cleanliness
of the Development, the operation thereof, the preservation of good order
therein, and the protection and comfort of its tenants, their agents, employees
and invitees, including but not limited to rules and regulations regarding hours
of access to the Development, which rules when made and notice thereof given to
a tenant shall be binding upon him in a manner as if originally herein
prescribed. In the event of any conflict, inconsistency or other difference
between the terms and provisions of these rules and regulations and any lease
now or hereafter in effect between Landlord and any tenant in the building,
Landlord shall have the right to rely on the term or provision in either such
lease or such Rules and Regulations which is most restrictive on such tenant and
most favorable to Landlord.
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