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EXHIBIT 6(l)
LEASE AGREEMENT
By and Between
823 CONGRESS, LTD.
("Landlord")
and
CAPITAL FIRST MORTGAGE CORPORATION
("Tenant")
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SUITE # 707
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") is entered as of the _ day of April, 1997
by and between 823 CONGRESS, LTD., a Texas limited partnership ("Landlord") and
CAPITAL FIRST MORTGAGE CORPORATION, a Texas corporation ("Tenant").
ARTICLE 1 - PREMISES, TERM AND USE
1.01. Leased Premises.
(a) Upon the terms, provisions and conditions hereof, Landlord hereby
leases to Tenant and Tenant hereby leases from Landlord the premises, reflected
on the floor plans set forth in Exhibit "A" attached hereto and incorporated
herein for all purposes, in the Building known as the 823 CONGRESS, Building
(the "Building") which term shall also include the related parking areas,
landscaping, and other similar improvements), constructed or to be constructed
on the land described in Exhibit "B" hereto (the "Land"). Such premises,
together with any other space in the Building leased by Tenant pursuant hereto,
are herein called the "Leased Premises."
(b) The Rentable Area (defined below) of the Initial Leased Premises
(the "Initial Leased Premises") is approximately 1,806 square feet, and the
Rentable Area for the entire Building is approximately 181,381 square feet.
Tenant's pro rata share of Basic Operating Costs (defined in Section 2.02 of the
Lease) is agreed to be 0.9957% ("Tenant's Share").
(c) The term "Rentable Area" shall mean (i) in the case of a single
tenancy floor, the area as calculated by Landlord's engineer within the inside
surface of the outer glass or finished column walls of the Building to the
inside surface of the opposite outer wall, excluding only the areas within the
Building used for elevator mechanical rooms or shafts, stairs, fire towers,
flues, vents, stacks, pipe shafts, and vertical ducts, but including any such
areas which are for the specific use of Tenant, plus an allocable portion (based
on Rentable Area in the Leased Premises compared to Rentable Area of all tenants
in the Building) of the Building's elevator areas, mechanical rooms, ground and
basement lobbies and other similar facilities utilized by all Building tenants,
and (ii) in the case of a multi-tenant floor, the area as calculated by
Landlord's engineer within the inside surface of the outer glass or finished
column walls enclosing the Leased Premises to the midpoint of the demising walls
separating the Leased Premises from other areas, but including an allocable
portion (based on Rentable Area in the Leased Premises compared to Rentable Area
of all tenants on the floor) of the corridors, elevator foyers, restrooms,
mechanical rooms, janitor closets, vending areas, and other similar facilities
for the use of all Building tenants on the particular floor, plus an allocable
portion (based on Rentable Area in the Leased Premises compared to Rentable Area
of all tenants in the Building) of the Building's elevator areas, mechanical
rooms, ground and basement lobbies and other similar facilities for the use of
all tenants in the Building. The Rentable Area does not necessarily equal the
square footage of usable space in the Leased Premises.
1.02. Term.
(a) Subject to the terms, provisions and conditions hereof, this Lease
shall continue in force for a term ("Term") of approximately sixty months
commencing on the Commencement Date and ending on the sixtieth full month
thereafter.
(b) Commencement. As used herein, "Commencement Date" means the latter
to occur of: (i) the date Tenant's leasehold improvements are substantially
completed (or would have been substantially completed except for delays caused
by Tenant) in accordance with Exhibit C attached hereto and made a part hereof
for all purposes, or (ii) May 1, 1997. Notwithstanding the foregoing, if Tenant
occupies all or any part of the Premises prior to (i) or (ii) above, the
Commencement Date shall be the date of such occupancy. Within five (5) days
after
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the Commencement Date or at any time thereafter on the request of Landlord,
Tenant shall execute and deliver to Landlord a declaration (in the form of
Exhibit L hereto) specifying, among other things, the date upon which the same
occurred.
1.03. Use. The Leased Premises shall be used and occupied by Tenant solely
for the purpose of office space, and for no other purpose, without Landlord's
express written consent.
ARTICLE 2 - RENTAL
2.01. Base Rental. Tenant shall pay monthly rental ("Base Rental") during
the term of the Lease according to the following rental schedule:
Lease Months Rent
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1-12 $2,107.00 per month (based on a "rental rate of $14.00 per
square foot of Rentable Area per year)
13-24 $2,107.00 per month (based on a rental rate of $14.00 per
square foot of Rentable Area per year)
25-36 $2,107.00 per month (based on a rental rate of $14.00 per
square foot of Rentable Area per year)
37-48 $2,408.00 per month (based on a rental rate of $16.00 per
square foot of Rentable Area per year)
49-60 $2,408.00 per month (based on a rental rate of $16.00 per
square foot of Rentable Area per year)
Such Base Rental shall be due and payable in advance in monthly installments by
the first (1st) day of each calendar month during the Term according to the
rental schedule outlined above at Landlord's address as provided herein (or at
such other place as Landlord may hereafter designate) without demand, deduction,
abatement, or setoff (except as otherwise expressly provided for herein or other
portions of this Lease). If this Lease does not commence on the first day of a
month, Base Rental for such partial month shall be due on or before the
Commencement Date. Notwithstanding the foregoing, if Landlord obtains a
certificate of occupancy prior to May 1, 1997, no rent shall be due for the
period prior to May 1, 1997 regardless of whether Tenant actually occupies the
Premises.
2.02. Tenant's Share of Basic Operating Costs.
(a) Beginning January 1, 1998, and continuing for each calendar year
thereafter for the remainder of the Term, Tenant shall pay, as an adjustment to
Base Rental, an amount equal to Tenant's Share (per square foot of Rentable Area
of the Leased Premises compared to the square footage of Rentable Area in the
Building) of the excess ("Excess") of Basic Operating Costs (hereafter defined)
for the Building over the actual 1997 Base Year Basic Operating Costs. Such
Excess shall be payable by Tenant to Landlord as additional Base Rental. At
Landlord's option, in its sole discretion, Landlord may collect such Excess in
arrears on a yearly basis; or alternatively, prior to the commencement of each
calendar year Landlord shall make and provide a good faith estimate of the Basic
Operating Costs, and related Excess, for the Building for the upcoming calendar
year, and, thereafter, Tenant shall pay, as additional Base Rental in equal
monthly installments, Tenant's Share of the difference between the estimated
Basic Operating Costs for said calendar year and the Base Year Operating Costs
(i.e. the "Excess"). Any amounts paid based on such an estimate shall be subject
to adjustment when actual Basic Operating Costs are available for such calendar
year pursuant to the methodology defined below.
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(b) Within one hundred fifty (150) days or as soon thereafter as possible
of the conclusion of each calendar year of the Term, Landlord shall furnish to
Tenant a statement of actual Basic Operating Costs for such year, and within
thirty (30) days thereafter an appropriate cash adjustment shall be made between
Landlord and Tenant to reflect any difference between Landlord's estimate of,
and the actual, Basic Operating Costs. For any calendar year during which the
Term includes less than all of the calendar year, Landlord shall have the option
of calculating actual Basic Operating Costs only for the portion of the calendar
year included in the Term and make the aforementioned adjustment on that basis.
(c) Basic Operating Costs shall be paid by Tenant in the proportion
(herein called "Tenant's Share") which the Rentable Area under this Lease bears
to the total Rentable Area of the Building.
(d) "Basic Operating Costs" shall mean all expenditures that Landlord pays
or becomes obligated to pay in connection with owning, operating, and
maintaining the Building, parking, and related facilities, and such additional
facilities in subsequent years as may be determined by Landlord to be advisable
in accordance with sound and reasonable practices for facilities of a like kind
and character. Basic Operating Costs shall be determined on an accrual basis in
accordance with generally accepted accounting principles which shall be
consistently applied. Basic Operating Costs shall include, without limitation,
the following:
(1) All costs related to the management, operation and maintenance of
the Building, including, without limitation, all personnel costs;
(2) All supplies, equipment and materials used in the operation and
maintenance of the Building;
(3) Cost of all utilities for the Building, including the cost of
water and power, heating, lighting, air conditioning and ventilating for
the Building;
(4) Cost of all maintenance and service agreements for the Building,
the equipment therein and grounds, including landscaping maintenance,
alarm service, window cleaning and elevator maintenance;
(5) Cost of all insurance relating to the Building, including casualty
and liability insurance applicable to the Building and Landlord's personal
property used in connection therewith;
(6) All taxes and assessments and governmental charges, whether
federal, state, county, municipal or other, subsequently created or
otherwise, and whether they be by taxing the Leased Premises or otherwise,
and any other taxes and assessments attributable to the Land, the Building
or its operation excluding, however, federal and state taxes on income and
ad valorem taxes on Tenant's personal property and on the value of
leasehold improvements to the extent that the same exceeds Building
Standard allowances;
(7) Cost of repairs and general maintenance (excluding such repairs
and general maintenance paid by insurance proceeds or by Tenant or other
third parties;
(8) Legal expenses, accounting expenses and management fees incurred
with respect to the Building;
(9) Costs incurred in compliance with existing new or revised federal
or state laws or municipal ordinances or codes or regulations promulgated
under any of the same; and
(10) Amortization of the cost (whether incurred before or during the
Term of this Lease) of capital items which are primarily for the purpose
of operation, maintenance, or repair, or of reducing (or avoiding
increases in) operating costs or which may be required by governmental
authority, together with actual or imputed interest thereon at a market
rate. All such costs shall be amortized over the
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reasonable life of the capital investment items with the reasonable life
and amortization schedule being determined in accordance with generally
accepted accounting principles and in no event to extend beyond the
reasonable life of the Building. In the case of installations for the
purpose of reducing (or avoiding increases in) operating costs, Landlord
shall, upon request, provide Tenant a cost justification therefore. Basic
Operating Costs shall not include (i) expenditures classified as capital
expenditures for Federal income tax purposes, and depreciation, except as
set forth in Section 2.02(d)(10), (ii) costs for which Landlord is
specifically reimbursed by Tenant, any other tenant of the Building, or
any other third party, (iii) costs of initial construction of the
Building, (iv) cost of renovating or modifying non-common space in the
Building for lease to other tenants, (v) leasing commissions, and (vi)
base rent under ground leases (but not taxes, insurance, repairs or other
items otherwise included in Section 2.02(d) even if they are obligations
under the ground leases).
(e) If the Building is not fully occupied during any year an adjustment
shall be made in computing the Basic Operating Costs for such year so that the
Basic Operating Costs shall be computed as though ninety-five percent (95%) of
the Building has been occupied during such year.
2.03. Audit Tenant, at its expense, shall have the right, upon giving
reasonable notice, to audit Landlord's books and records relating to any
increase or additional rental payable here hereunder for any periods within two
(2) years prior to such audit; or at Landlord's sole discretion, Landlord will
provide an audit or report prepared by a certified public accountant, which
audit or report for purposes of this Lease shall be conclusive.
ARTICLE 3 - LANDLORD'S SERVICES
3.01. Services to be furnished by Landlord.
(a) Landlord shall use its best efforts to furnish Tenant, at Landlord's
expense, subject to the Building Rules and Regulations (hereafter defined) and
Tenant's performance of its obligations hereunder, the following services:
(1) Air conditioning and heating in season, during Normal Building
Operating Hours (hereafter defined), at such temperatures and in such
amounts as are considered by Landlord to be standard;
(2) Hot and cold water at those points of supply provided for lavatory
and drinking purposes only;
(3) Window washing services for the outside portions of the Building
at such times as determined by Landlord;
(4) Elevators for access to and egress from the Leased Premises and
the Building twenty-four (24) hours a day, seven (7) days a week;
(5) Electricity and proper facilities to furnish sufficient electrical
power during Normal Building Operating Hours for normal offices machines
and other machines of low electrical consumption (but not including
electricity required for electronic data processing equipment other than
as mentioned above, special lighting in excess of building standard, or
any other items of high electrical consumption) up to a total consumption
of not more than 1 watt per square foot of Rentable Area at rated capacity
at 120 volts single phase; and
(6) Replacement of fluorescent lamps in Building Standard light
fixtures installed by Landlord and incandescent bulb replacement in all
public areas.
(7) Janitorial service to the Building and the Leased Premises five
(5) nights per week.
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(b) "Normal Building Operating Hours" shall be from 7:00 a.m. to 7:00 p.m.
Monday through Friday, and 8:00 a.m. to 1:00 p.m. Saturday, exclusive of
holidays.
(c) Failure by Landlord to any extent to furnish such services or any
cessation thereof of Landlord shall not render Landlord liable in any respect
for damages to either person or property, nor be construed as an eviction of
Tenant, nor work an abatement of rent, nor relieve tenant from fulfillment of
any covenant or agreement hereof. Should any of such services be interrupted,
Landlord shall use reasonable diligence to restore same promptly, but Tenant
shall have no claim for rebate of rent or damages or eviction on account
thereof.
(d) Tenant shall pay to Landlord, monthly, as billed, such charges as may
be separately metered or as Landlord may compute for any services agreed to in
writing in advance by Tenant not standard for the Building, including without
limitation electrical service in excess of that provided for in Section 3.01(a).
3.02. Access by Tenant Prior to Commencement of Term. Landlord, at its
discretion, may permit Tenant and its employees, agents, suppliers, contractors
and workmen to enter the Leased Premises prior to the commencement of the Term
to enable Tenant to do such things as may be required by Tenant to make the
Leased Premises ready for Tenant's occupancy. If such permission is granted,
Tenant guarantees that such parties will not interfere with or delay the
performance of any activities by Landlord or other occupants of the Building.
Landlord may withdraw such permission upon twenty-four (24) hours notice to
Tenant if Landlord determines that any such interference or delay has been or
may be caused. Any such entry into the Leased Premises shall be at Tenant's risk
and Landlord shall not be liable in any way for personal injury, death, or
property damage which may be suffered in or about the Leased Premises or the
Building by Tenant or its employees, agents, contractors, suppliers or workmen.
3.03. Improvements to be made by Landlord. Landlord shall make those
improvements to the Leased Premises as generally reflected in Exhibit "C"
hereto, under the terms and conditions therein set forth. When used herein,
"Building Standard" items shall mean those items described as such in Exhibit
"C" hereto. No improvements shall be made except pursuant to plans and
specifications approved in writing by Landlord. Landlord shall solicit bids for
construction of the improvements in the manner deemed appropriate by Landlord.
Landlord shall pay for the costs of making those improvements described as such
in Exhibit "C" hereto. Any additional costs shall be paid by Tenant before
commencement of construction of the improvements, or in arrears after completion
of construction of the improvements and within ten (10) days after Landlord has
delivered an itemized statement to Tenant outlining Tenant's additional costs.
If Tenant desires to make any change orders, Tenant must obtain Landlord's prior
written approval of each specific change order. After Landlord has determined
that the improvements have been substantially completed, Landlord will so notify
Tenant. Within three (3) business days after such notification, Tenant will
inspect the improvements and provide Landlord with either Tenant's written
acceptance of the improvements or a written statement describing all of Tenant's
reasons for non-acceptance. Landlord disclaims and Tenant waives all warranties,
including implied warranties, with respect to the improvements including any
warranties of merchantability or fitness for a particular purpose. Either party
may obtain warranties from the contractor or from any supplier or manufacturer
of the improvements, and each party will look solely to the contractors,
suppliers and manufacturers of the improvements with respect to any claims
regarding the improvements.
3.04. Repair and Maintenance by Landlord. Landlord shall not be required
to make any improvements or repairs of any kind or character to the Leased
Premises, except such repairs as may be required to the Building corridors,
lobby, structural members of the Building, and equipment used to provide the
services referred to in Section 3.01, and such additional maintenance to such
corridors, lobbies or structural members as may be necessary because of damage
by persons other than Tenant, its agents, employees, invitees, or visitors. The
obligation of Landlord to so maintain and repair the Leased Premises shall be
limited to Building Standard items. Tenant will promptly give Landlord written
notice of any damage in the Leased Premises. This Section shall not apply in the
case of damage or destruction by fire or other casualty (as to which Section
5.02 shall apply), or damage resulting from an eminent domain taking (as to
which Section 5.01 shall apply).
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3.05. Disclaimer of Warranties. Tenant represents and warrants that
Landlord (including any person acting for Landlord) has made no representations
or warranties to Tenant as to the condition or suitability of the Leased
Premises, either express or implied. Except to the extent, if any, expressly set
forth in this Lease, to the full extent allowed by applicable law and as a
material part of the consideration for Landlord's entering into this Lease with
Tenant, Tenant waives and Landlord disclaims all representations and warranties
to Tenant of any kind, whether express or implied, including, without
limitation, as to habitability, condition of the Leased Premises or Building
(including, without limitation, suitability for particular purpose or commercial
use), and provision of services. Tenant represents and warrants that it has been
afforded an opportunity to conduct and has conducted inspections of the Leased
Premises and the Building and is relying solely upon the results of such
inspections in electing to enter into this Lease Agreement. Tenant agrees to
accept the Leased Premises in its AS IS, WHERE IS condition, with all faults.
ARTICLE 4 - TENANT'S COVENANTS
4.01. Payments by Tenant. Tenant agrees to timely pay all rents and sums
provided to be paid to Landlord hereunder at the times and in the manner herein
provided and to occupy at all times the Leased Premises.
4.02. Certain Taxes. In addition to payments required to be made to
Landlord hereunder, Tenant shall timely pay to the charging authority without
abatement, deduction or offset, all ad valorem taxes, general and special
assessments, and other charges of every description levied on or assessed
against Tenant's personal property or on improvements installed in the Leased
Premises from time to time that are above Building Standard. Tenant shall pay
all such charges whether or not they are chargeable against Landlord. Upon
Landlord's request, Tenant shall provide Landlord with proof of payment of such
charges.
4.03. Repairs by Tenant. Tenant shall, at its cost, but under Landlord's
control, repair or replace any damage to the Building, or any part thereof,
caused by Tenant or Tenant's agents, employees, licensees, invitees or visitors,
and any damage to the Leased Premises.
4.04. Care of the Leased Premises. Tenant shall maintain the Leased
Premises in a clean, attractive condition, and not commit or allow any waste or
damage to be committed on or any portion of the Leased Premises, and at the
expiration or termination of this Lease shall deliver up the Leased Premises to
Landlord in as good condition as at date of possession by Tenant, ordinary wear
and tear excepted.
4.05. Assignment and Sublease. Tenant shall not mortgage, pledge,
hypothecate or otherwise transfer or assign this Lease or the leasehold estate
granted hereby absolutely or as security for a debt or other obligation, whether
by a direct or indirect method, and Tenant shall not cause or allow this Lease
or the leasehold estate to be subjected to any unpaid charge or any existing or
subsequent interest of any third person, without the prior written consent of
Landlord which shall not be unreasonably withheld. Tenant shall not sublet the
Leased Premises or any part thereof without the prior written consent of
Landlord. Any attempted assignment, sublease or other action by Tenant in
violation of this Section 4.05 shall be void and shall constitute an Event of
Default (hereinafter defined) not subject to any notice or opportunity to cure.
In no event may Tenant assign this Lease or sublease all or any portion of the
Leased Premises to any party whose operations in the Building would not be in
keeping with, or would detract from, the operations of other tenants in the
Building. If Tenant is not a public company that is registered on a national
exchange or that is required to register its stock with the Securities and
Exchange Commission under Section 12(g) of the Securities Exchange Act of 1934,
then any change in a majority of the voting rights or other control rights of
Tenant shall be deemed an assignment for the purposes hereof. If the rent and
other consideration for any assignment or subleasing exceeds the Rental, for the
portion of the Term covered by such assignment or subleasing, then Landlord
shall be entitled to all such excess, which shall be paid by Tenant to Landlord
immediately upon Tenant's receipt thereof. Tenant shall, unless released by
Landlord upon any permitted assignment or sublease, remain directly and
primarily liable for the performance of all of the covenants, duties and
obligations of tenant hereunder and Landlord shall be permitted to enforce the
provisions of this Lease against Tenant and/or any assignee or sublessee without
demand upon or proceeding in any way against any other
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person. Consent by Landlord to a particular assignment or sublease shall not be
deemed a consent to any other or subsequent transaction. If this Lease is
assigned or if the Leased Premises are subleased without the permission of
Landlord, then Landlord may nevertheless collect rent from the assignee or
sublessee and apply the net amount collected to the rent payable hereunder, but
no such transaction or collection of rent or application thereof by Landlord
shall be deemed a waiver of any provision hereof or a release of Tenant from the
performance of the obligations of the Tenant hereunder. All subleases and
assignments shall be subordinate and subject to the provisions of this Lease and
shall automatically terminate upon the expiration or prior termination of this
Lease or the termination of Tenant's right to possession hereunder.
4.06. Alterations, Additions, Improvements. Tenant will make no
alteration, change, improvement, repair, replacement or addition to the Leased
Premises without the prior written consent of Landlord. All alterations,
changes, improvements, repairs, replacements and additions to the Leased
Premises shall be made under Landlord's control and at Tenant's expense. Tenant
may remove its trade fixtures, office supplies and moveable office furniture and
equipment not attached to the Building provided (a) such removal is made under
Landlord's control, but at Tenant's expense, prior to the expiration or prior
termination of this Lease, (b) Tenant has paid all rent required during the
entire Term of this Lease and is not then in default in the timely performance
of any obligation or covenant under this Lease, and (c) Tenant pays in advance
to repair all damage caused by such removal. All other property at the Leased
Premises (including but not limited to wall-to-wall carpeting, drywall,
partitions, paneling or other wall covering) and any other article attached or
affixed to the floor, wall, or ceiling of the Leased Premises shall become the
property of Landlord and shall be surrendered with the Leased Premises as part
thereof at the expiration or prior termination of this Lease, without payment or
compensation therefor. However, at Landlord's option, Landlord may, at Tenant's
expense, prior to termination or expiration of this Lease, remove any and all
alterations, additions, fixtures, equipment and property placed or installed by
it in the Leased Premises pursuant to this Lease or at Tenant's request, and
repair any damage caused by such removal. Tenant shall pay for such removal and
repair in advance.
4.07. Compliance with Laws and Usage; Liens. Tenant, at its cost, shall
comply with all federal, state, municipal and other laws and ordinances, and the
Building Rules and Regulations applicable to the Leased Premises and the
business conducted therein by Tenant; will not engage in any activity which
would cause Landlord's fire and extended coverage insurance to be cancelled or
the rate therefor to be increased (or, upon agreement of Landlord and Tenant,
will pay any such increase); will not commit any act which is a nuisance or
annoyance to Landlord or to other tenants or which might, in the exclusive
judgment of Landlord, appreciably damage Landlord's goodwill or reputation, or
tend to injure or depreciate the Building; and will not commit or permit waste
in the Leased Premises or Building. Tenant has no authority to encumber the
Building or Leased Premises with any lien, and Tenant shall not suffer or permit
any such lien to exist. Should any such lien hereafter be filed, Tenant shall
promptly discharge the same at its sole cost. If Tenant fails to do so, Landlord
shall have the right, but not the duty, to pay or otherwise discharge, stay or
prevent the execution of any such lien. Tenant shall reimburse Landlord upon
demand for all sums paid by Landlord, together with all of Landlord's reasonable
attorneys' fees and costs, plus interest on all such sums from the date paid by
Landlord until repaid by Tenant. Tenant shall defend (with counsel chosen by
Landlord) and indemnify Landlord against all claims, liability, damages and loss
of any type arising out of any kind of work performed on the Leased Premises by
Tenant, including, without limitation, any damages caused by the release of
asbestos, together with reasonable attorneys' fees and all reasonable costs and
expenses incurred by Landlord in negotiating, settling, defending or otherwise
protecting against such claims.
4.08. Access by Landlord. Tenant shall permit Landlord or its agents or
representatives to enter into and upon any part of the Leased Premises at all
reasonable hours to inspect same; to clean; to make repairs, alterations or
additions thereto, as Landlord may deem necessary or desirable; to show the
Leased Premises to prospective purchasers or tenants; or for any reasonable
purpose deemed by Landlord.
4.09. Landlord's Mortgagee. Tenant agrees with Landlord that this Lease is
and shall be subordinate to any deed of trust now or hereafter affecting the
Building or the Leased Premises, but that the beneficiary of any such deed of
trust ("Landlord's Mortgagee") shall have the right at any time to elect, by
notice in writing given to Tenant, to make this Lease superior to the lien of
such mortgage or deed of trust. Upon the giving of such notice
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to Tenant, this Lease shall be deemed prior and superior to the mortgage or deed
of trust in respect to which such notice is given; and at Landlord's Mortgagee's
request, Tenant shall execute a recordable memorandum of this Lease establishing
this Lease as superior to such lien. Landlord's Mortgagee may, by like notice,
make this Lease subordinate to such mortgage or deed of trust. If Landlord's
Mortgagee shall elect to make this Lease subordinate to such mortgage or deed of
trust, the same shall be self-operative and no further instrument of
subordination need be required by any Landlord's Mortgagee. In confirmation of
such subordination, however, Tenant shall execute promptly any reasonable
instrument that Landlord or Landlord's Mortgagee may request. Tenant shall have
no right unilaterally to subordinate this Lease to any mortgage or deed of trust
affecting the Building or the Leased Premises. In the event of the sale of the
Building by Landlord's Mortgagee pursuant to its remedies provided for by law or
by such mortgage or deed of trust, if such has been subordinated to this Lease,
or upon the transfer, sale, or assignment of the Building to any third party
through any means allowed by law, or upon the termination of the ground leases
on the land under the Building, Tenant shall automatically become the tenant of
Landlord's successor in interest without change in terms of other provisions of
this Lease, as the same shall have been amended, and such successor in interest
shall succeed to the rights and obligations of the Landlord under this Lease.
Upon request by such successor in interest, Tenant shall execute and deliver '
reasonable instruments confirming the attornment provided for herein.
Notwithstanding any contrary provision in this Lease, Tenant's failure to
execute such instrument on demand shall be an Event of Default hereunder not
subject to any notice or opportunity to cure. Tenant hereby irrevocably
constitutes and appoints Landlord the Tenant's attorney-in-fact to execute any
such instrument for and on behalf of Tenant. If Landlord's Mortgagee sells the
Building under the deed of trust and such has not been subordinated to this
Lease, this Lease shall terminate upon such sale.
4.10. Estoppel Certificate. At Landlord's request, Tenant will promptly
execute an estoppel certificate addressed to Landlord's Mortgagee certifying as
to such notice provisions and other matters as Landlord's Mortgagee may
reasonable request. At Landlord's request from time to time, Tenant will execute
a certificate stating the commencement and expiration dates of the Term, the
rental then payable hereunder, that there are no defaults on the part of the
Landlord or claims against Landlord hereunder (or if there are any, stating the
same with particularity), and such other information pertaining to this Lease as
Landlord may reasonably request. Notwithstanding any contrary provision in this
Lease, Tenant's failure to execute such instrument on demand shall be an Event
of Default hereunder not subject to any notice or opportunity to cure.
4.11. Hazardous Substances. Except for any asbestos in the Leased Premises
at the commencement of this Lease, Tenant shall not cause or permit any
Hazardous Substance (as defined below) to be brought upon or kept or used on or
about the Premises, by Tenant, its agents, employees, contractors, licensees or
invitees unless Tenant first obtains the prior written consent of Landlord. If
at any time Tenant shall become aware or have reasonable cause to believe that
any Hazardous Substance has come to be located on or in the Leased Premises,
Tenant shall immediately upon discovering such presence or suspected presence of
the Hazardous Substance give written notice of that condition to Landlord.
"Hazardous Substance" shall mean any hazardous or toxic substance, including,
but not limited to, any substance named or described in any list of hazardous
substances or hazardous materials in the United States Code, the Code of Federal
Regulations, or any similar list or definition compiled by any federal, state or
local authority.
4.12. Notice of Litigation and Other Matters. Tenant shall promptly inform
Landlord of (a) any litigation against Tenant or any guarantor of Tenant or
affecting any security for the performance of Tenant's obligations hereunder
which might have a material adverse effect upon the financial condition of
Tenant or any guarantor of Tenant or upon such security or might cause a default
under this Lease, (b) any claim or controversy which might become the subject of
such litigation, (c) any material adverse change in the financial condition of
Tenant or any guarantor of Tenant, and (d) any information, financial or
otherwise, with respect to Tenant as Landlord may reasonably request from time
to time.
4.13. Valid Obligations. Tenant and the undersigned representative of
Tenant represent and warrant to Landlord that:
(a) If Tenant is a legal entity, Tenant is duly organized, validly
existing and in good standing under the laws of the state of Texas and has the
power and authority to carry on its business as presently conducted and
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as contemplated to be conducted on the Leased Premises by this Lease and to
enter into and perform its obligations under this Lease.
(b) If Tenant is a legal entity, the execution, delivery and performance
by the Tenant of this Lease has been duly authorized by all necessary action
under its articles or certificate of incorporation, by-laws and otherwise.
(c) The execution, delivery and performance of this Lease by Tenant will
not violate any law, its articles or certificate of incorporation, by-laws or
any other instrument or agreement constituting, binding upon or affecting
Tenant.
4.14. Reference to Tenant. In this Lease, every reference to Tenant in the
context of the description of an obligation of Tenant or of an action of Tenant
shall refer also to each assignee and/or sublessee of Tenant, whether the
assignee or sublessee is direct or indirect.
ARTICLE 5 - MUTUAL COVENANTS.
5.01. Condemnation and Loss or Damage. If the Leased Premises, Building,
or any part thereof shall be taken or condemned for any public purpose (or
conveyed in lieu or in settlement thereof) to such an extent as to render the
remainder of the Leased Premises or a substantial part of the Building, in the
opinion of Landlord, not reasonably suitable for occupancy, this Lease shall, at
the option of Landlord, forthwith cease and terminate. If this Lease is not so
terminated, Landlord shall repair any damage resulting from such taking, to the
extent and in the manner provided in Section 5.02, and rental hereunder shall be
abated to the extent the Leased Premises are rendered untenantable during the
period of repair, and thereafter be adjusted on a pro rata basis considering the
areas of the Leased Premises taken and remaining. In either case, all proceeds
from any taking or condemnation of the Building and the Leased Premises shall
belong to and be paid to Landlord.
5.02. Fire or Other Casualty, Certain Repairs.
(a) In the event of a fire or other casualty in the Leased Premises,
Tenant shall immediately give notice thereof to Landlord. If the Leased Premises
shall be partially destroyed by fire or other casualty so as to render the
Leased premises untenantable in whole or in part, then the rental provided for
herein shall xxxxx as to the portion of the Leased Premises rendered
untenantable until such time as the Leased Premises are made tenantable as
determined by Landlord and Landlord agrees to commence and prosecute such repair
work promptly and with reasonable diligence. However, if such destruction
results in the Leased Premises being untenantable in substantial part for a
period reasonably estimated by Landlord to be six (6) months or longer, or in
the event of such substantial damage or destruction of the Building that
Landlord decides not to rebuild, then all rent owed up to the date of such
damage or destruction shall be paid by Tenant and this Lease shall terminate at
Landlord's option upon notice thereof to Tenant. Landlord shall give Tenant
written notice of its decision, estimates or election under this Section 5.02
within sixty (60) days after any such damage or destruction. Notwithstanding
anything to the contrary contained herein, if such casualty is caused by the
acts or omissions of Tenant, or any sublessee or assignee, or any of their
agents, representatives, contractors, subcontractors, guests, invitees,
licensees or employees, then Tenant shall be liable to Landlord for all damage
occasioned thereby, shall cause the Leased Premises and the Building, at its
sole cost and expense, to be restored and shall not be entitled to any abatement
of rent.
(b) Should Landlord elect to effect any repairs under Sections 5.01 or
5.02, Landlord shall only be obligated to restore or rebuild the Leased Premises
to a Building Standard condition. In no event, however, shall Landlord be
responsible to Tenant for reconstruction of any improvements to the Premises
constructed by Tenant or any damage to any of Tenant's equipment, machinery,
fixtures or other personal property located in or about the Premises.
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5.03. Lien for Rent. To secure the payment of rent and all other sums due
hereunder and for the performance of all covenants required hereunder to be
performed by Tenant, Tenant grants to Landlord a lien and security interest on
all property of Tenant which now or hereafter may be placed in or upon the
Leased Premises, and upon all proceeds of any insurance which may accrue to
Tenant by reason of damage or destruction of any such property, which lien and
security interest shall be in addition to Landlord's lien provided by law.
Tenant may not remove any such property from the Leased Premises without
Landlord's prior written consent. Upon request, the parties shall take such
further reasonable action as may be required to perfect such security interest.
5.04. Holding Over. If Tenant should remain in possession of the Leased
Premises after the termination or expiration of the Term without the execution
by Landlord and Tenant of a new lease, then Tenant shall be deemed to be
occupying the Leased Premises as a tenant-at-sufferance, subject to all the
covenants and obligations of this Lease and at a daily rental equal to two
hundred percent (200%) of the per day rental in effect immediately prior to such
expiration of termination, computed on the basis of a thirty (30) day month, but
such holding over shall not extend the Term.
5.05. Assignment by Landlord. Landlord shall have the right to transfer
and assign, in whole or in part, all its rights and obligations hereunder and in
the Building and property referred to herein, and upon any such transfer or
assignment, no further liability or obligation shall thereafter accrue hereunder
against the transferor.
5.06. Limitation to Landlord's Liability. Tenant specifically agrees to
look solely to Landlord's interest in the Building for the recovery of any
judgment from Landlord, it being agreed that Landlord shall never be personally
liable for any such judgment. The provisions contained in the foregoing sentence
shall not limit any right that Tenant might otherwise have to obtain injunctive
relief against Landlord, or any other action not involving the liability of
Landlord to respond in monetary damages from assets other than Landlord's
interest in the Building.
5.07. Control of Common Areas and Parking Facilities by Landlord. All
automobile parking areas, driveways, entrances and exits thereto, and other
facilities furnished by Landlord, including all parking areas, truck way or
ways, loading areas, pedestrian walkways, ramps, landscaped areas, stairways and
other areas and improvements provided by Landlord for the general use, in
common, of tenants, their officers, agents, employees, invitees, licensees,
visitors and customers shall be at all times 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 (herein called
the "Building Rules and Regulations") with respect to all facilities and areas
mentioned in this Section; the initial Building Rules and Regulations are set
out in Exhibit "D" hereto.
5.08. Default by Tenant.
(a) Each of the following occurrences relative to Tenant shall constitute
an "Event of Default":
(1) Failure or refusal by Tenant to make the timely payment of any
rent or other sums payable under this Lease or any Parking Agreement
between Landlord and Tenant when and as the same shall become due and
payable, which remains uncured after Landlord has given Tenant three (3)
days' written notice of the same; however, once Landlord has given Tenant
two (2) such notices (whether as to one or more than one failure to pay)
it shall not be required to give further notice and thereafter the failure
or refusal by Tenant to timely make any payment due hereunder shall be an
Event of Default without further notice; or
(2) Abandonment or vacating of the Leased Premises or any significant
portion thereof; or
(3) The filing or execution or occurrence of a petition in bankruptcy
or other insolvency proceeding by or against Tenant or any guarantor of
Tenant; or petition seeking relief under any provision of the U.S.
Bankruptcy Code; or an assignment for the benefit of creditors or
composition; or
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a petition of other proceeding by or against the Tenant for the
appointment of a trustee, receiver or liquidator of Tenant or any of
Tenant's property; or a proceeding by any governmental authority for the
dissolution or liquidation of Tenant or any guarantor of Tenant; or
(4) The occurrence of any other event herein provided to be an Event
of Default; or
(5) Failure by Tenant in the performance or compliance with any of the
agreements, terms, covenants or conditions provided in this Lease or any
Parking Agreement between Landlord and Tenant, other than those referred
to above in Subsection (a), which remains uncured for a period of (10)
days after written notice from Landlord to Tenant specifying the items in
default; or
(6) The dissolution, liquidation or termination of existence of Tenant
or any guarantor of Tenant; or
(7) If Tenant is not an individual, a transfer of a controlling
interest in Tenant without Landlord's written consent; or
(8) A default under any guaranty agreement under which another party
guarantees performance of Tenant's obligations hereunder, or any material
adverse change in the financial condition of Tenant or any guarantor of
Tenant.
(b) This Lease and the Term and estate hereby made are subject to the
limitation that if and whenever any Event of Default shall occur, Landlord may,
at its option and without further written notice to Tenant, in addition to all
other remedies given hereunder or by law or equity, do any one or more of the
following:
(1) Terminate this Lease, in which event Tenant shall immediately
surrender possession of the Leased Premises to Landlord;
(2) Enter upon and take possession of the Leased Premises and expel or
remove Tenant and any other occupant therefrom, terminating the right to
possession with or without having terminated the Lease;
(3) Alter locks and other security devices at the Leased Premises.
(c) Exercise by Landlord of any one or more remedies shall not constitute
an acceptance of surrender of the Leased Premises by Tenant, whether by
agreement or by operation of law, it being understood that such surrender can be
effected only by the written agreement of Landlord and Tenant.
(d) If Landlord terminates this Lease by reason of an Event of Default,
Tenant shall pay to Landlord the sum of all rent and other indebtedness accrued
to the date of such termination, plus interest, plus, as damages, an amount
equal to the then present value of all rentals then payable under this Lease for
the remainder of the Term, less the then present value of the fair market rental
value of the Leased Premises for such period. For purposes of discounting to
present value, the parties shall use the discount rate of the Federal Reserve
Bank of Dallas on the date of the termination. The cost to Landlord to perform
any unperformed obligation of Tenant as of the termination of the Lease shall be
included in the indebtedness accrued to the date of such termination, whether or
not such costs have been incurred or paid by Landlord as of that date. Unless
Tenant has paid all amounts due to Landlord hereunder, Landlord may at
Landlord's election use Tenant's personal property and trade fixtures or any of
such property and fixtures without compensation and without liability for use or
damage, or store them for the account and at the cost of Tenant.
(e) If Landlord repossesses the Leased Premises without terminating the
Lease, then Tenant shall pay to Landlord all rent and other indebtedness accrued
to the date of such repossession, plus rent and other sums required to be paid
by Tenant during the remainder of the Term, diminished by any net sums
thereafter received
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by Landlord through reletting the Leased premises during said period (after
deducting expenses incurred by Landlord as provided below); reentry by Landlord
will not affect the obligations of Tenant for the unexpired Term. Tenant shall
not be entitled to any excess of any rent obtained by reletting over the rent
herein reserved. Actions to collect amounts due by Tenant may be brought on one
or more occasions, without the necessity of Landlord's waiting until expiration
of the Term. Landlord may at Landlord's election use Tenant's personal property
and trade fixtures or any of such property and fixtures without compensation and
without liability for use or damage, or store them for the account and at the
cost of Tenant.
(f) In case of an Event of Default, Tenant shall also pay to Landlord:
broker's fees incurred by Landlord in connection with reletting the whole or any
part of the Leased Premises; the cost of removing and storing Tenant's or any
other occupant's property; the cost of repairing, altering, remodeling or
otherwise putting the Leased Premises into condition acceptable to a new tenant
or tenants, and all reasonable expenses incurred by Landlord in enforcing
Landlord's remedies, including reasonable attorneys' fees and court costs.
(g) Upon repossession of the Leased Premises for an Event of Default,
Landlord shall not be obligated to relet the Leased premises, or any portion
thereof, or to collect rental after reletting, but Landlord shall use reasonable
efforts to attempt to relet and collect rental. In the event of reletting,
Landlord may relet the whole or any portion of the Leased Premises for any
period, to any tenant, and for any use and purpose.
(h) If Tenant should fail to make any payment, perform any obligation, or
cure any default hereunder, Landlord, without obligation to do so and without
thereby waiving such failure or default, may make such payment, perform such
obligation, and/or remedy such other default for the account of Tenant (and
enter the Leased Premises for such purpose), and Tenant shall pay upon demand
all costs, expenses and disbursements (including reasonable attorneys' fees)
incurred by Landlord in taking such remedial action.
5.09. Non-Waiver. Neither acceptance of rent by Landlord nor failure by
Landlord to complain of any action, non-action or default of Tenant shall
constitute a waiver of any of Landlord's rights hereunder. Waiver by Landlord of
any right for any default of Tenant shall not constitute a waiver of any right
for either a subsequent default of the same obligation or any other default.
5.10. Independent Obligations. The obligation of Tenant to pay all rent
and other sums hereunder provided to be paid by Tenant and the obligation of
Tenant to perform Tenant's other covenants and duties hereunder constitute
unconditional obligations to be performed at all times provided for hereunder,
independent of Landlord's obligations or performance thereof, save and except
only when an abatement thereof or reduction therein is hereinabove expressly
provided for and not otherwise. Tenant waives and relinquishes all rights which
Tenant might have to claim any nature of lien against or withhold, or deduct
from or offset against any rent and other sums provided hereunder to be paid
Landlord by Tenant.
5.11. Time of Essence. In all instances where any act is required at a
particular indicated time or within an indicated period, it is understood and
stipulated that time is of the essence.
5.12. Remedies Cumulative. Landlord may restrain or enjoin any breach or
threatened breach of any covenant, duty or obligation of Tenant herein contained
without the necessity of proving the inadequacy of any legal remedy or
irreparable harm. The remedies of Landlord, whether exercised by Landlord or
not, shall not be deemed to be in exclusion of any other.
5.13. Insurance, Subrogation, Liability, Indemnity, and Waiver.
(a) Landlord shall maintain fire and extended coverage insurance on the
portion of the Building constructed by Landlord, and building standard leasehold
improvements in such amount as Landlord deems appropriate. Such insurance shall
be maintained with an insurance company authorized to do business in Texas, in
reasonable amounts desired by Landlord and payments for losses thereunder shall
be made solely to Landlord. Tenant shall maintain at its expense fire and
extended coverage insurance for the full insurable value, at replacement cost,
on all of its personal property, including removable trade fixtures, located in
the Leased
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Premises and on its non-Building Standard leasehold improvements and all
additions and improvements made by Tenant and not required to be insured by
Landlord above.
(b) Landlord and Tenant shall each, at their respective expense, maintain
a policy or policies of comprehensive general liability insurance, including
contractual liabilities, with the premiums thereon fully paid, issued by and
binding upon some solvent insurance company, such insurance to afford minimum
protection (which may be affected by primary and/or excess coverage) with bodily
injury limits of not less than $1,000,000 for each occurrence and $1,000,000 in
the aggregate and property damage liability of not less than $250,000 for each
occurrence and $250,000 in the aggregate.
(c) Anything herein to the contrary notwithstanding, except as provided in
Section 4.07, each party hereto hereby releases and waives all claims, rights of
recovery and causes of action that either party (or any party claiming by,
through or under such party) by subrogation or otherwise may now or hereafter
have against the other party or any of the other party's directors, officers,
partners, employees or agents for any loss or damage that may occur to the
Building, Leased Premises, Tenant improvements or any of the contents of any of
the foregoing by reason of fire or other casualty, or any other cause including
negligence of the parties hereto or their directors, officers, partners,
employees, or agents, that could have been insured against under the terms of
(1) standard fire and extended coverage insurance policies with vandalism and
malicious mischief endorsement and sprinkler leakage endorsement (where
applicable) or (2) any other loss covered by insurance of the respective
parties except gross negligence or willful misconduct; provided, however, that
this waiver shall be ineffective against any insurer of Landlord or Tenant to
the extent that such waiver is prohibited by the laws and insurance regulations
of the State of Texas. The waiver set forth in this Section 5.13 (c) shall not
apply to any deductibles on policies carried by Landlord nor to any coinsurance
penalty which Landlord might sustain.
(d) Except for the claims, rights of recovery and causes of action that
Landlord has released and waived pursuant to Section 5.13 (c), Tenant hereby
releases and agrees to indemnify, defend, and hold harmless Landlord and
Landlord's agents, directors, officers, partners, employees, invitees and
contractors, from all claims, losses, costs, damages and expenses (including,
but not limited to, attorneys' fees) resulting or arising from any injuries or
death of any person, damage to any property, or the presence or release of any
Hazardous Substance, caused or alleged to have been caused by an act, omission,
or neglect of Tenant or any sublessee or assignee, or any of their directors,
officers, partners, employees, agents, invitees or guests, or any parties
contracting with Tenant relating to the Leased Premises.
(e) Tenant agrees that Landlord shall not be responsible or liable to
Tenant or any sublessee or assignee, or any of their employees, agents,
customers, licensees, or invitees, for bodily injury (fatal or non-fatal) or
property damage occasioned by the acts or omissions of any other tenant or such
tenant's employees, agents, contractors, customers, licensees, or invitees
within the Building, or for any loss or damage to any property or persons
occasioned by theft, fire, act of God, public enemy, injunction, riot, strike,
insurrection, war, court order, requisition or order of governmental body or
authority, or any other cause beyond the control of Landlord, or for any
inconvenience or loss to Tenant in connection with any of the repair,
maintenance, damage, destruction, restoration or replacement referred to in this
Lease.
(f) All insurance required hereby shall be issued by carriers and in
amounts satisfactory to Landlord and shall specifically provide that the same
cannot be cancelled or materially changed without ten (10) days' prior written
notice to Landlord. Additionally, all such insurance shall name the Landlord as
an additional insured. Tenant shall furnish Landlord with certificates of all
such insurance before Tenant takes possession of the Leased Premises, and from
time to time upon request of Landlord shall provide Landlord with evidence of
insurance, including without limitation, copies of all policies of insurance
required to be kept by Tenant hereunder. If Tenant fails to procure or maintain
insurance as required hereunder or fails to furnish Landlord with proof of such
insurance, Landlord shall have the right, in addition to all other rights and
remedies granted Landlord herein, to procure and maintain such insurance. All
sums paid by Landlord in this respect shall be treated as additional rent due
from Tenant on demand. Landlord shall not be liable for any failure to obtain or
maintain any such insurance or if any insurance obtained by Landlord does not
name, insure or in any way protect Tenant or any person other than Landlord.
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5.14. Venue; Governing Law. This Lease shall be governed by the laws of
the State of Texas. All monetary and other obligations of Landlord and Tenant
are performable exclusively in Xxxxxx, Xxxxxx County, Texas.
5.15. Notice. Any notice which may or shall be given under the terms of
this Lease shall be in writing and shall be either delivered by hand or sent by
United States Registered or Certified Mail, postage prepaid, if for Landlord to
the address provided below; or if for Tenant, to the Leased Premises. Such
addresses may be changed from time to time by either party by giving notice as
provided above; however, Tenant may not change its address unless Landlord has
consented to a sublease or assignment of this Lease. Notice shall be deemed
given when delivered (if delivered by hand) or three (3) days after postmarked
(if sent by mail).
Landlord's Address: 823 Congress, Ltd.
c/o OMNI Commercial Realty Advisors, Inc.
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
5.16. Entire Agreement, Binding Effect, and Severability. This Lease and
any written addenda and all exhibits hereto (which are expressly incorporated
herein by this reference) shall constitute the entire agreement between Landlord
and Tenant; no prior written or prior or contemporaneous oral promises or
representations shall be binding. This Lease shall not be amended, changed or
extended except by written instrument signed by both parties hereto. In
particular, the parties wish to avoid any dispute or litigation regarding
whether or not there shall have been any oral modification, consent or waiver of
any provision of this Lease, and therefore each party warrants to the other that
it shall not make or rely on, or claim that it or the other party shall have
made, any modification, consent or waiver of any provision of this Lease unless
the same shall be in writing and signed by both parties. Tenant warrants that
the provisions of this paragraph 5.16 shall remain in effect as written unless
and until the same have been amended in a writing signed by Landlord that
expressly states that it is amending the provisions of this paragraph 5.16. The
provisions of this Lease shall be binding upon and inure to the benefit of the
heirs, executors, administrators, successors and assigns of the parties, but
this provision shall in no way alter the restrictions on assignment and
subletting applicable to Tenant hereunder. If any provision of this Lease or the
application thereof to any person or circumstance shall at any time or to any
extent be held invalid or unenforceable, and the basis of the bargain between
the parties hereto is not destroyed or rendered ineffective thereby the
remainder of this Lease or the application of such provisions to persons of
circumstances other than those as to which it is held invalid or unenforceable
shall not be affected thereby.
5.17. Right of Reentry and Surrender. Upon the expiration or termination
of the Term for whatever cause, Landlord shall have the right to immediately
reenter and reassume possession of the Leased Premises and remove Tenant's
property therefrom, and Tenant expressly acknowledges such right. Upon the
expiration or earlier termination of the Term, Tenant shall peaceably quit and
surrender the Leased Premises in good order and condition, excepting ordinary
wear and tear and casualty loss that Landlord is obligated to repair. All
obligations of Tenant and Landlord for the period of time prior to the
expiration or earlier termination of the Term shall survive such expiration or
termination.
5.18. Number and Gender; Captions; References. Pronouns, where used
herein, of whatever gender, shall include natural persons, corporations, and
associations of every kind and character, and the singular shall include the
plural and vice versa where and as often as may be appropriate. Article and
section headings under this Lease are for convenience of reference and shall not
affect the construction or interpretation of this Lease. Whenever the terms
"hereof", "herein", or words of similar import are used in this Lease, they
shall be construed as referring to this Lease in its entirety rather than to a
particular section or provision, unless the context specifically indicates to
the contrary. Any reference to a particular "Article" or "Section" shall be
construed as referring to the indicated article or section of this Lease.
5.19. Security Deposit. Concurrently with the execution hereof, Tenant has
paid to Landlord the amount of $4,214.00 to be held as a deposit to secure
performance of Tenant's obligations hereunder and to be
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applied to the payment of the first month's rent. Upon the occurrence of any
Event of Default, or upon the failure by Tenant to timely pay any sum it is
obligated to pay hereunder, Landlord may, from time to time, without prejudice
to any other remedy, apply such deposit to the curing of such Event of Default
or the payment of such sum. Should Landlord so apply such deposit, Tenant shall
immediately upon receipt of notice thereof, deposit with Landlord a sufficient
amount to bring Tenant's total deposit to the level stated in the first sentence
of this Section 5.19. Upon termination or expiration of this Lease, the security
deposit shall be returned to Tenant, to the extent the same is not then applied
to curing of any Event of Default or the payment of any sum owed by Tenant
hereunder. Landlord may keep such security deposit in its bank account and
commingle same with its other funds; and shall not be responsible for paying any
interest thereon. The amount so deposited shall not be considered as an advance
payment of rental hereunder, or as a measure of Landlord's damages in the event
of any failure to perform on the part of Tenant.
5.20. Delinquent Payments; Handling Charge. Any payments required of
Tenant hereunder, whether as rental or otherwise, shall bear interest from the
time due until paid at the maximum rate of interest for which the parties are
permitted by law to contract. Furthermore, should Tenant fail to timely pay any
installment of rental hereunder, a fee equal to five percent (5%) of the
delinquent installment to reimburse Landlord for its cost and inconvenience
incurred in dealing with Tenant's delinquent payment. In no event, however,
shall the charges imposed under this Section 5.20 and elsewhere in this Lease,
to the extent the same are considered to be interest under applicable law,
exceed the maximum rate of interest allowable under applicable law.
5.21. Relocation. If Landlord chooses to utilize the Leased Premises for
other purposes during the Term, Tenant agrees to relocate to other space in the
Building designated by Landlord and acceptable to Tenant, provided such space is
of equal or larger size than the Leased Premises and has at least the same
number of windows. Landlord shall pay all out-of-pocket expenses of any such
relocation, including the expenses of moving and reconstruction of all Tenant
furnished and Landlord furnished improvements. In the event of such relocation,
this Lease shall continue in full force and effect without any change in the
terms or other conditions, but with the new location substituted for the old
location set forth in this Lease.
5.22. Quiet Enjoyment. Tenant, on paying all sums herein called for and
performing and observing all of its covenants and agreements hereunder, shall
and may peaceably and quietly have, hold, occupy, use, and enjoy the Leased
premises during the Term subject to the provisions of this Lease and applicable
governmental laws, rules, and regulations; and Landlord agrees to warrant and
forever defend Tenant's right to such occupancy against the claims of any and
all persons whomsoever lawfully claiming the same or any part thereof, by,
thereof or under Landlord but not otherwise, subject only to the provisions of
this Lease and all applicable governmental laws, rules, and regulations.
5.23. Signs. No signs, symbols, or identifying marks shall be placed upon
the Building or in the halls, elevators, staircases, entrances, parking areas or
upon the doors of walls without prior written approval of Landlord. Landlord
agrees to provide and install, at Tenant's cost, all letters and numerals in the
Building standard graphics, and no others shall be used or permitted on the
Leased Premises.
5.24. Broker. Tenant represents and warrants that Tenant has dealt with,
and only with, OMNI COMMERCIAL REALTY ADVISORS, INC. as Landlord's broker in
connection with this Lease and that, insofar as Tenant knows, no other broker(s)
negotiated this Lease or is entitled to any commission in connection herewith.
Tenant shall indemnify and hold harmless Landlord from and against all claims
(and costs of defending against and investigating such claims) of any other
broker(s) or similar parties claiming under Tenant in connection with this
Lease.
ARTICLE 6 - TELEPHONE/DATA SERVICE
6.01. Telephone/Data Service. Procurement, wiring, and installation of a
telephone system, whether owned or leased by the Tenant, to serve the Leased
Premises for Voice, data, or other communication service, shall be the sole
responsibility of the Tenant; provided, however, that Landlord shall connect the
telephone
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and electrical outlets for the Leased premises in accordance with the floor
plans shown on Exhibit "A". All wiring provided for such services shall be in
compliance with current fire and building codes as mandated by the City of
Austin.
EXECUTED in multiple counterparts, each of which shall have the force and
effect of an original on the date first written above written.
LANDLORD:
823 CONGRESS, LTD., a Texas limited partnership
By: OMNI CONGRESS JOINT VENTURE,
a Texas general partnership, General Partner
By: /s/ XXX XXXXX
---------------------------------------------
Xxx Xxxxx, Managing Venturer
Date: 4-8-97
-------------------------------------------
TENANT:
CAPITAL FIRST MORTGAGE CORPORATION,
a Texas corporation
By: /s/ XXXXX XXXXXXXX
---------------------------------------------
Its: President
--------------------------------------------
Date: 4-7-97
-------------------------------------------
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EXHIBITS
EXHIBIT A: FLOOR PLANS
EXHIBIT B: LAND DESCRIPTION
EXHIBIT C: INITIAL IMPROVEMENTS
EXHIBIT D: RULES AND REGULATIONS
EXHIBIT E: ACKNOWLEDGEMENT
EXHIBIT F: ADDITIONAL TERMS
EXHIBIT G: ENVIRONMENTAL
EXHIBIT H: NONE
EXHIBIT I: NONE
EXHIBIT J: NONE
EXHIBIT K: GUARANTY OF LEASE
EXHIBIT L: COMMENCEMENT DATE DECLARATION
17
19
EXHIBIT A
TO
LEASE AGREEMENT BETWEEN
823 CONGRESS, LTD., AS LANDLORD,
AND CAPITAL FIRST MORTGAGE CORPORATION, AS TENANT
FLOOR PLANS - LEASED PREMISES
[SEE ATTACHED]
INITIALED FOR IDENTIFICATION BY LANDLORD TS AND TENANT GL
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20
[FLOOR PLAN]
21
EXHIBIT B
TO
LEASE AGREEMENT BETWEEN
823 CONGRESS, LTD., AS LANDLORD,
AND CAPITAL FIRST MORTGAGE CORPORATION, AS TENANT
DESCRIPTION OF LAND
000 Xxxxxxxx Xxxxxx, located on Xxxx 0-0 Xxxxx 000, xxxxxxxx Xxxx of
Austin, Xxxxxx, Xxxxxx County, Texas
INITIALED FOR IDENTIFICATION BY LANDLORD TS AND TENANT GL
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22
EXHIBIT C
TO
LEASE AGREEMENT BETWEEN
823 CONGRESS, LTD., AS LANDLORD,
AND CAPITAL FIRST MORTGAGE CORPORATION, AS TENANT
INITIAL IMPROVEMENTS
Landlord shall install new building standard carpet and new 4" base and
will repaint the drywall and interior trim with building standard paint in
colors selected by Tenant.
INITIALED FOR IDENTIFICATION BY LANDLORD TS AND TENANT GL
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23
EXHIBIT D
TO
LEASE AGREEMENT BETWEEN
823 CONGRESS, LTD., AS LANDLORD,
AND CAPITAL FIRST MORTGAGE CORPORATION, AS TENANT
RULES AND REGULATIONS
1. WALK AND PASSAGEWAY OBSTRUCTION. The sidewalks, entries, passages,
courts, corridors, stairways, and elevators shall not be obstructed by Tenant,
Tenant's employees or agents or used by them for other purposes than for ingress
and egress to and from their respective suites.
2. HEAVY EQUIPMENT; FURNITURE MOVEMENT. All safes or other heavy articles
shall be carried up or into the Building only at such times and in such manner
as shall be prescribed by Landlord and Landlord shall in all cases have the
right to specify the proper weight and position of any such safe or other heavy
article. Any damage done to the Building by taking in or removing any safe or
other heavy article or from overloading any floor in any way shall be paid by
Tenant. Maximum live floor loads shall not exceed fifty (50) pounds per square
foot. Defacing or injuring in any way any part of the Building by Tenant, his
agent or servants, shall be paid by Tenant. Movement of furniture or office
equipment in or out of the Building, or dispatch or receipt by Tenant of any
heavy equipment, bulky material or merchandise which requires use of elevators
or stairways, or movement through the Building's service or lobby entrance shall
be restricted to such hours as shall be in a manner to be agreed upon between
Tenant (upon Tenant's initiation) and Landlord in advance. The time, method, and
routing of movement and limitations for safety or other concern which may
prohibit any article, equipment or other item from being brought into the
Building shall be subject to Landlord's discretion and control. Any hand trucks,
carryalls, or similar appliances used for the delivery or receipt of merchandise
or equipment shall be equipped with rubber tires, side guards and such other
safeguards as the Building shall require. Although Landlord or its personnel may
participate in or assist in the supervision of such movement, Tenant assumes
final responsibility for all risks as to damage to articles moved and injury to
persons or property engaged in such movement, including equipment, property and
personnel of Landlord if damaged or injured as a result of acts in connection
with carrying out this service for Tenant, from the time of entering the
property to completion of work. Landlord shall not be liable for the acts of any
person engaged in, or any damage or loss to any of said property or persons
resulting from any act in connection with such service performed for Tenant.
3. SIGNS; DIRECTORIES. No sign, advertisement or notice shall be inscribed,
painted or affixed on any part of the inside or outside of the Building unless
approved by Landlord. Tenant shall not xxxx, paint, drill into or in any way
deface the walls, ceilings, partitions or floors of the Building and shall not
put therein any spikes, hooks, screws or nails. Tenant may, however, place on
the walls without Landlord's prior permission, paintings, photographs or other
matters which may be hung with no more than two (2) ten (10) pound limit picture
hangers each.
4. DISPLAY CASES. No showcase or any other fixture or objects whatsoever
shall be placed in front of the Building or in the lobby, corridor, or other
public areas, within the Building or the grounds contiguous therewith by Tenant,
without written consent of Landlord.
5. JANITORIAL SERVICE. Tenant shall not employ any person or persons other
than the janitor of the Landlord for the purpose of cleaning or taking charge of
the Leased Premises, without the written consent of the Landlord, it being
understood and agreed that the Landlord shall be in no way responsible to any
Tenant for any loss of property from the Leased Premises, however occurring, or
for any damage done to the furniture by the janitor or any of its employees, or
by any other person or persons employed by Tenant. Any person
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24
employed by Tenant with the written consent of the Landlord must be subject to
and under the control and direction of the janitor of the Building. The janitor
of the Building may at all times keep a pass key, and he and other agents of the
Landlord shall at all times be allowed admittance to said Leased Premises.
Landlord's janitors shall not be hindered by Tenant while performing their
duties.
6. LOCKS. Landlord will furnish Tenant, free of charge, two keys for each
corridor door entering the Leased Premises, additional keys to be furnished at a
reasonable charge by Landlord on an order signed by Tenant or Tenant's
authorized representatives. All such keys shall remain the property of Landlord.
No additional locks shall be allowed on any door of the Leased Premises without
Landlord's permission, and Tenant shall not make or permit to be made any
duplicate keys, except those furnished by Landlord. Upon termination of this
Lease, Tenant shall surrender to Landlord all keys to the Leased premises and
give to Landlord the explanation of the combination of all locks for safes, safe
cabinets and vault doors, if any, in the Leased Premises.
7. BUILDING SECURITY. The Landlord specifically reserves the right to
refuse admittance to the Building after 6:00 p.m. daily or on Sunday or on legal
holidays to any person or persons who cannot furnish satisfactory identification
or to any person or persons who for any other reason should be denied access to
the premises. All persons entering the Building after 6:00 p.m., whether Tenant
or others, may be required to sign a register before given admittance to any
part of the Building, but Landlord shall not be liable for any damages which may
result from its failure to maintain such a register or for any omissions from
said register. Landlord will use reasonable efforts to provide security to the
Building (but shall have no obligation to do so) during the weekends and after
normal working hours during the week; provided, however, Landlord shall not be
liable to Tenant for losses due to theft or burglary, or for damage done by
unauthorized persons on the premises.
8. LIGHT & AIR PASSAGEWAYS. The doors, skylights and windows that reflect
or admit light and air into the corridors and passageways, or to any place in
said Building shall not be covered or obstructed by Tenant.
9. PLUMBING FIXTURES. The water closets and other water fixtures shall not
be used for any purpose other than those for which they were constructed, and
any damage resulting to them for misuse or the defacing or injury of any part of
the Building shall be paid for by Tenant, excepting only where the defacing or
injury is by Landlord or an agent of Landlord. Tenant shall not waste water by
interfering with the faucets or otherwise.
10. NOISE. Tenant shall not disturb the occupants of the Building by the
use of any musical or sound producing instrument, making unseemly noises, or by
interference in any way. Tenant shall not bring any dogs or other animals into
the Building.
11. BICYCLES. Tenant shall not bring any bicycle or similar vehicles into
the Building.
12. DEBRIS. Nothing shall be thrown out of the doors of the Building, or
down the stairways or other passages by Tenant.
13. ELEVATOR SERVICE. The Landlord shall not be liable for any damages from
stoppage of elevators for necessary or desirable repairs or improvements, or
delays of any sort or duration in connection with the elevator service. Advance
notice of arriving or departing shipments will enable the Building Management to
give better assistance.
14. ELECTRIC SERVICE. If Tenant desires background music, telegraphic,
telephonic or other electric communications, the Landlord or its agents will
direct the electricians, as to where and how the wires may be introduced, and
without such directions, no boring or cutting for wires will be permitted.
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00
00. CANVASSING & SOLICITING. Canvassing, soliciting and peddling in the
Building is prohibited and Tenant shall cooperate to prevent the same.
16. AUTOMOBILE PARKING. All vehicles will be parked within striped lanes as
designated by Landlord from time to time. Parking across the stripes or in
unmarked areas, blocking of walkways, loading areas, entrances or driveways,
will not be permitted. Tenants and their employees shall observe rules,
regulations and restrictions as may be imposed by Landlord from time to time on
such parking areas. Without limitation of other remedies available at law or set
forth herein, Landlord may, at owner's cost and without liability to the
Landlord, tow away or cause to be towed away all vehicles owned by Tenant or
Tenant's employees parking in any reserved parking areas in violation of this
provisions or parked in any other area in violation of this agreement or any
other agreement, rule or regulation relating to the parking. Landlord reserves
the right to utilize the parking areas during other than normal building
operating hours. Landlord shall not be liable for violations of any parking
agreement, rule, regulation, or law by any other party.
17. UNATTENDED PREMISES. Tenant, its agents, servants, and employees,
before leaving the leased premises unattended, shall close and lock all doors
and shut off all lights.
18. EXCESS TRASH DISPOSAL. In the event Tenant must dispose of crates,
boxes, etc. which will not fit into office waste paper baskets, it will be the
responsibility of Tenant to dispose of same. In no event will Tenant set such
items in the public hallways or other areas the Building (excepting Tenant's own
Leased Premises) for disposal.
19. CARPET DAMAGE. Tenant will be responsible for any damage to carpeting
and flooring as a result of rust or corrosion of file cabinets, pot holders,
roller chairs and metal objects, spilled beverages and stains.
20. EXTRA UTILITY USAGE. In the event Tenant desires utility or air
conditioning service at other than normal operating hours, the request must be
made at the Property Manager's office. This service will be made available at
the then prevailing rate established on an hourly basis.
21. ADDITIONAL RULES. The Landlord reserves the right to make such other
and further reasonable rules and regulations as in its judgement may from time
to time be needed for the safety, care and cleanliness of the Leased premises
and for the preservation of good order therein.
22. HOUSEKEEPING. Tenant space that is visible from public areas must be
kept neat and clean. All freight and passenger elevator lobbies are to be kept
neat and clean. The disposal of trash or storage of materials in these areas is
prohibited.
23. THERMOSTAT SETTING. Tenant shall not tamper with or attempt to adjust
temperature control thermostats in Leased Premises. Landlord shall adjust
thermostats as required to maintain the building standard temperature. Landlord
requires that all window blinds remain down.
24. LOCKING OF DOORS. All doors leading from public corridors to the Leased
Premises are to be kept closed when not in use, and locked during the night, or
when the space is unoccupied.
25. NOTICES. Tenant shall give immediate notice to the Property Manager's
office in case of accidents in the Leased Premises or in the Building or defects
therein or in any fixtures or equipment, or of any known emergency in the
Building.
26. COOKING. No cooking shall be done or permitted by Tenant on the Leased
Premises; nor shall sleeping or lodging be permitted. Tenant may, however,
operate or allow the use of a coffee bar and microwave oven by or for its
employees.
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00
00. SERVICES. Tenant shall refer all contractors, contractors'
representatives and installation technicians rendering any service for Tenant to
Landlord for Landlord's supervision and/or approval before performance of any
such contractual services. This shall apply to all work performed in the
Building including but not limited to installation of telephones, telegraph
equipment, and electrical devices and attachments, and installation of any and
every nature affecting floors, walls, woodwork, trim, windows, ceilings,
equipment or any other physical portion of the Building. None of this work will
be done by Tenant without Landlord's written approval first had and obtained,
except as otherwise expressly provided in the Lease.
28. TELEPHONE/DATA SERVICES. Except as otherwise provided for in the Lease,
the procurement, wiring, and installation of a telephone system, whether owned
or leased by the Tenant, to serve the Leased Premises for Voice, data, or other
communication service, shall be the sole responsibility of the Tenant.
Telephone and electrical outlets for the Leased Premises shall all terminate in
the telephone/electrical closet common to the floor on which the Leased Premises
are located. All wiring provided for such services shall be in compliance with
current fire and building codes as mandated by the City of Austin.
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27
EXHIBIT E
TO
LEASE AGREEMENT BETWEEN
823 CONGRESS, LTD., AS LANDLORD,
AND CAPITAL FIRST MORTGAGE CORPORATION, AS TENANT
ACKNOWLEDGEMENT
Tenant hereby acknowledges that Tenant received notice from Landlord prior
to signing of the Lease that asbestos is present in certain areas of the
Building. Tenant further agrees that Tenant shall not allow or give permission
to any person, including Tenant, to move or dislodge the ceiling tiles, to go or
perform any work above the ceiling in the Leased Premises (or elsewhere in the
Building), or to make any alterations in the Leased Premises (or elsewhere in
the Building), without the Landlord's prior written consent.
TENANT:
CAPITAL FIRST MORTGAGE CORPORATION,
a Texas corporation
By: /s/ XXXXX XXXXXXXX
------------------------------
Its: President
------------------------------
Date: 4-7-97
------------------------------
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28
EXHIBIT F
TO
LEASE AGREEMENT BETWEEN
823 CONGRESS, LTD., AS LANDLORD,
AND CAPITAL FIRST MORTGAGE CORPORATION, AS TENANT
ADDITIONAL TERMS
None.
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29
EXHIBIT G
TO
LEASE AGREEMENT BETWEEN
823 CONGRESS, LTD., AS LANDLORD,
AND CAPITAL FIRST MORTGAGE CORPORATION, AS TENANT
ENVIRONMENTAL NOTICE
As you may know, asbestos is often present in buildings constructed between
the mid-1930's and the late 1970's when it was commonly used for fire insulation
purposes. For background information purposes, asbestos is a term used to
describe a group of six (6) naturally occurring crystalline fiber minerals.
Asbestos has been used extensively throughout the world in the textile,
insulation and building industries. With respect to its use in buildings,
surveys conducted by the Environmental Protection Agency (E.P.A.) indicate that
asbestos-containing construction and building materials occur in more than
750,000 buildings, including schools, public buildings, and office buildings
throughout the country.
Because the 823 Congress Building was constructed during the period in
which asbestos was commonly used, First City, Texas - Austin (former owners)
retained the services of an engineering and testing consulting firm to conduct a
survey of the building to determine the possible presence of asbestos-containing
materials. The test results from material samples obtained during the survey
indicated that the building's fireproofing material, some pipe insulation
material, some vinyl floor material, some equipment insulation, and some HVAC
duct insulation joint material contain varying amounts of asbestos. These
materials were observed to be in good condition and intact at the time of the
survey. ALTHOUGH THESE MATERIALS EXIST IN THE BUILDING, NO FRIABLE ASBESTOS -
CONTAINING MATERIALS ARE EXPOSED TO THE NORMALLY OCCUPIED TENANT SPACES IN THE
BUILDING. ACCORDING TO OUR CONSULTANTS, THE MATERIALS NOTED ABOVE AS CONTAINING
ASBESTOS DO NOT CURRENTLY PRESENT A HAZARD TO THE BUILDING OCCUPANTS IF THEY ARE
NOT DISTURBED.
Upon notification of the results of this survey, and in the continuing
interest in the safety of the building occupants, the consulting firm conducted
a series of air-sampling tests to determine if there was any measurable
concentration of airborne fiber content in the building's air. This
"prevalent-level air-sampling" serves to indicate the concentration of any and
all types of airborne fibers (including carpet, dust, etc.) of a specific size
and shape. The results of these tests, which were taken in accordance with
E.P.A. and the Occupational Safety and Health Administration (OSHA) guidelines,
indicated that the air in the 823 Congress Building had airborne fiber
concentrations which were below the testing method limit of detection and well
within EPA and OSHA established guidelines. In conjunction with our consultants,
we will conduct periodic air-sample tests to ensure that the air concentrations
remain within established guidelines. The results of these tests are, and will
be, kept in the building management office and available for your inspection at
any time.
Additionally, our consultant has prepared an Operations and Maintenance
Program, which includes periodic reinspection of the asbestos-containing
materials, periodic prevalent-level air monitoring, and a program manual
detailing established guidelines to be followed during construction or
renovation work in the 000 Xxxxxxxx Xxxxxxxx to assure that such work presents
minimal exposure risk to building occupants. In addition, a Building Asbestos
Coordinator will coordinate all construction and renovation work performed
within the 000 Xxxxxxxx Xxxxxxxx, utilizing subcontractors fully aware of the
Operations and Maintenance Program.
Because of the strict guidelines established by this Operations and
Maintenance Manual, OMNI Commercial Realty Advisors, Inc. requires that all work
performed within lease space in the 000 Xxxxxxxx Xxxxxxxx be conducted only
after obtaining written approval from OMNI Commercial Realty Advisors, Inc.
Tenants shall submit to OMNI
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G-1
30
Commercial Realty Advisor's Inc. a detailed written request of any and all work
that Tenant wants to perform. This requirement is critical to consistent and
continued safe maintenance activities.
By signing in the space provided below, please acknowledge that you have
received a copy of this letter, and your firm's agreement to comply with all
requirements and guidelines noted above.
LANDLORD:
823 CONGRESS, LTD., a Texas limited
partnership
By: OMNI CONGRESS JOINT VENTURE,
a Texas general partnership, General
Partner
By: /s/ XXX XXXXX
-------------------------------
Xxx Xxxxx, Managing Venturer
Date: 4-8-97
-------------------------------
TENANT:
CAPITAL FIRST MORTGAGE CORPORATION,
a Texas corporation
By: /s/ XXXXX XXXXXXXX
------------------------------
Its: President
------------------------------
Date: 4-7-97
------------------------------
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31
EXHlBIT H
TO
LEASE AGREEMENT BETWEEN
823 CONGRESS, LTD., AS LANDLORD,
AND CAPITAL FIRST MORTGAGE CORPORATION, AS TENANT
[THIS PAGE INTENTIONALLY LEFT BLANK]
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32
EXHIBIT I
TO
LEASE AGREEMENT BETWEEN
823 CONGRESS, LTD., AS LANDLORD,
AND CAPITAL FIRST MORTGAGE CORPORATION, AS TENANT
[THIS PAGE INTENTIONALLY LEFT BLANK]
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33
EXHIBIT J
TO
LEASE AGREEMENT BETWEEN
823 CONGRESS, LTD., AS LANDLORD,
AND CAPITAL FIRST MORTGAGE CORPORATION, AS TENANT
[THIS PAGE INTENTIONALLY LEFT BLANK]
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34
EXHIBIT K
TO
LEASE AGREEMENT BETWEEN
823 CONGRESS, LTD., AS LANDLORD,
AND CAPITAL FIRST MORTGAGE CORPORATION, AS TENANT
GUARANTY OF LEASE
1. FOR VALUE RECEIVED, and in consideration for, and as an inducement to
823 CONGRESS, LTD., Landlord, to enter into the Lease Agreement (with all
Exhibits and Riders thereto, the "Lease") dated April 1, 1997 with CAPITAL FIRST
MORTGAGE CORPORATION, a Texas corporation, as Tenant, the undersigned, XXXXX X.
XXXXXXXX, XXXXX X. XxXXXXXX and XXX XXXXXXX, (hereinafter collectively called
"Guarantor", whether one or more), hereby absolutely and unconditionally
guarantees the full performance and observance of all the covenants, duties and
obligations (including, without limitation, the obligation to pay all rent and
other sums) therein provided to be performed and observed by Tenant, Tenant's
heirs, executors, administrators, successors and assigns (the phrase "heirs,
executors, administrators, successors and assigns" not altering any of the
provisions of said Lease relating to assignment or subletting); and Guarantor
hereby makes himself fully liable for such performance.
2. Guarantor expressly agrees that the validity of this Guaranty and its
obligations hereunder shall not be terminated, affected or impaired by reason of
the assertion by Landlord against Tenant of any of the rights or remedies
reserved under the Lease. Guarantor further covenants and agrees that this
Guaranty and the full liability of Guarantor hereunder shall remain and continue
in full force and effect notwithstanding the occurrence of any one or more of
the following types of transactions: (i) any renewal, extension, modification or
amendment of said Lease; (ii) any assignment or transfer by Landlord; (iii) any
assignment or transfer or subletting by Tenant; (iv) death of any party Tenant
(who may be a natural person); (v) any dissolution of Tenant (if Tenant is a
corporation); or (vi) the fact that Tenant (if Tenant is a corporation) may be a
party to any merger, consolidation or reorganization; provided however, if
Tenant is a disappearing party in any such merger, consolidation or
reorganization, then Guarantor shall thereupon automatically become primarily
liable for the performance of all the covenants, duties and obligations
(including, without limitation, the obligation to pay all rent and other sums)
of Tenant under said Lease. Landlord shall not be obligated to give notice to
Guarantor of the occurrence of any of the foregoing events.
3. Failure of Landlord to insist upon strict performance or observance of
any of the terms, provisions or covenants of said Lease or to exercise of any
right therein contained shall not be construed as a waiver or relinquishment for
the future of any such term, provision, covenant or right, but the same shall
continue and remain in full force and effect. Receipt by Landlord of rent (or
any other monetary sum or acceptance of performance of any obligation of Tenant
under said Lease) with knowledge of the breach of any provision of said Lease
shall not be deemed a waiver of such breach. Waiver by Landlord of any right of
Landlord against Tenant under said Lease shall not constitute a waiver as
against Guarantor or in any other way inure to the benefit of Guarantor (unless
Landlord agrees in writing that the liability of Guarantor under this Guaranty
is thereby affected).
4. Guarantor further agrees that in any right of action which shall accrue
to Landlord under said Lease, Landlord may, at its option, proceed against
Tenant alone (without having made any prior demand upon Guarantor or having
commenced any action against Guarantor of having obtained or having attempted
to satisfy any judgment against Guarantor) or may proceed against Guarantor and
Tenant, jointly or severally, or may proceed against Guarantor alone (without
having made any prior demand upon Tenant or having commenced any action against
Tenant or having obtained or having attempted to satisfy any judgment against
Tenant) or, in the case of there being more than one Guarantor, may proceed
against one or more Guarantors (without having made any prior
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K-1
35
demand upon any other Guarantor or having commenced any action against any other
Guarantor or having obtained or attempted to satisfy any judgment against any
other Guarantor).
5. All of the covenants, duties and obligations of Guarantor under this
Guaranty shall be performed in Austin, Texas and all matters relating to this
Guaranty and the covenants, duties and obligations of Guarantor under this
Guaranty shall be governed by the laws of the State of Texas.
6. Guarantor specifically waives any notice of acceptance of this Guaranty
by Landlord.
7. If any obligation of Tenant under the Lease is secured, in whole or in
part, by collateral of any type Landlord may, from time to time, at its
discretion and with or without valuable consideration, allow substitution or
withdrawal of all or any part of such collateral or subordinate or waive any of
its lien rights with respect to all or any part of such collateral or release
all or any part of such collateral, without notice to or consent of Guarantor
and without in any wise impairing, diminishing or releasing the liability of
Guarantor under this Guaranty. Under no circumstances shall Landlord be required
to first resort to any collateral for any obligation of Tenant as any nature of
prerequisite or precondition to invoking or enforcing the liability of Guarantor
under this Guaranty.
8. Guarantor acknowledges and represents to Landlord that Tenant executed
said Lease and Guarantor executed this Guaranty prior to the time that Landlord
executed said Lease. Guarantor acknowledges and agrees that the execution and
delivery of this Guaranty by Guarantor to Landlord has served as a material
inducement to Landlord to execute and deliver said Lease. Guarantor further
acknowledges and agrees that but for the execution and delivery of this Guaranty
by Guarantor, Landlord would not have executed and delivered said Lease.
9. Guarantor agrees that in the event that Tenant shall become insolvent or
shall be adjudicated a bankrupt, or shall file petition for reorganization,
rearrangement or other relief under any present or future provisions of the
Federal Bankruptcy Code, or if such a petition be filed by creditors of said
Tenant, or if Tenant shall seek a judicial readjustment of the rights of its
creditors under any present or future Federal or State law or if a receiver of
all or part of its property and assets is appointed by any State or Federal
court, no such proceeding or action taken therein shall modify, diminish or in
any way affect the liability of Guarantor under this Guaranty and the liability
of Guarantor with respect to such Lease shall be of the same scope as if
Guarantor had executed said Lease as the named tenant thereunder and no
rejection and/or termination of such Lease in any of the proceedings referred to
in this paragraph shall be effective to release and/or terminate the continuing
liability of Guarantor to Landlord under this Guaranty with respect to such
Lease for the remainder of the Lease Term stated therein unaffected by any such
rejection and/or termination in said proceedings; and if, in connection with any
of the circumstances referred to in this paragraph, Landlord should request that
Guarantor execute a new Lease for the balance of the term of said Lease, but in
all other aspects identical with said Lease, Guarantor shall do so as the named
"Tenant" under such new Lease, Guarantor shall do so as the named "Tenant" under
such new Lease (irrespective of the fact that the existing Lease may have been
"rejected" or "terminated" in connection with any proceedings referred to in
this paragraph). In the event of failure or refusal of Guarantor to execute such
new Lease as herein provided, without limiting any of the legal or equitable
remedies of Landlord on account of such failure or refusal, Guarantor agrees
that Landlord shall have the right to obtain a decree of specific performance
against Guarantor. In addition, Guarantor shall be fully liable to Landlord for
any amounts paid by Tenant under the Lease that are paid back to Tenant or
otherwise recovered from Landlord for the benefit of Tenant or its estate,
receivership or conservatorship pursuant to any of the proceedings referred to
in this paragraph.
10. All rights of Guarantor against Tenant arising by way or subrogation on
account of Guarantor's having performed some covenant, duty or obligation of
Tenant under said Lease shall be subject and subordinate to all of the rights of
Landlord against Tenant with respect to such Lease. Guarantor shall not exercise
any such right of Guarantor against Tenant until all of the covenants, duties
and obligations of Tenant under such Lease shall have been fully performed.
11. The stated rights of Landlord under this Guaranty shall be understood
as not excluding any other legal or equitable rights of Landlord against
Guarantor not expressly set forth herein, but shall be understood as being
cumulative to all such other legal and equitable rights of Landlord not
expressly stated herein.
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36
12. Whenever this Guaranty is executed by more than one party as Guarantor,
all references herein to Guarantor shall refer to each and all of the
undersigned parties signing this Guaranty as Guarantor, and the liability of
said parties for the performance of the covenants, duties and obligations of
Guarantor hereunder shall be joint and several.
13. Whenever this Guaranty is executed by a corporation, such corporation
represents that the guaranty granted hereby has been approved by, or pursuant to
authority granted by, the Board of Directors of such corporation based on a
determination that such guaranty may reasonably be expected to benefit, directly
or indirectly, the guarantor corporation.
14. Should any portion of this Guaranty ever be held legally invalid or
unenforceable, the balance of this Guaranty shall not thereby be affected, but
shall remain in full force and effect in accordance with its terms and
provisions.
15. All terms and provisions hereof shall inure to the benefit of the
assigns and successors of Landlord and shall be binding upon the heirs,
executors, administrators, successors and assigns of Guarantor.
16. In any action between the parties seeking enforcement or interpretation
of this Guaranty or the Lease, the prevailing party in such action shall be
awarded, in addition to damages, injunctive or other relief, its reasonable cost
and expenses, and a reasonable attorney's fee as may be fixed by the court
having jurisdiction over the matter.
EXECUTED in multiple counterparts, each of which shall have the force and
effect of an original, effective as of the date of the Lease.
GUARANTOR
/s/ XXXXX X. XXXXXXXX
-----------------------------------
Xxxxx X. Xxxxxxxx
Address: 0000 Xxxxxxxx Xx Xxxx #000
--------------------------
Xxxxxx, XX 00000
-----------------------------------
GUARANTOR
/s/ XXXXX X. XXXXXXXX
-----------------------------------
Xxxxx X. XxXxxxxx
Address: 00000 Xxxxxxx Xx.
--------------------------
Xxxxxx, XX 00000
-----------------------------------
GUARANTOR
/s/ XXX XXXXXXX
-----------------------------------
Xxx Xxxxxxx
Address: 0000 Xxxxxx Xx
--------------------------
Xxxxx Xxxx, XX 00000
-----------------------------------
INITIALED FOR IDENTIFICATION BY LANDLORD TS AND TENANT GL
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K-3
