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EXHIBIT 10.9.7
LEASE
THIS LEASE AGREEMENT (hereinafter designated this "Lease" or the "Lease")
is entered into as of the 7th day of January, 1993, in multiple copies, between
New England Mutual Life Insurance Company (herein designated as "Landlord") and
Press Pass, L.P., a Texas limited partnership (herein designated as "Tenant").
DEFINITIONS AND BASIC 1. The definitions and basic provisions set forth in
PROVISIONS the Basic Lease Information (the "Basic Lease
Information") executed by Landlord and Tenant
contemporaneously herewith are incorporated herein
by reference for all purposes and shall be used in
conjunction with and limited by the reference
thereto in the provisions of this Lease.
LEASE GRANT 2. Landlord, in consideration of the covenants and
agreements to be performed by Tenant and upon the
terms and conditions hereinafter stated, does
hereby lease, demise and let unto Tenant the
Demised Premises, as defined in the Basic Lease
Information and generally outlined on the plan
attached hereto as Exhibit "A," commencing on the
Commencement Date (as defined in the Basic Lease
Information) and ending on the last day of the
lease term, unless sooner terminated as herein
provided. If this Lease is executed before the
premises become vacant, or otherwise available and
ready for occupancy, or if any present tenant or
occupant of the Demised Premises holds over and
Landlord cannot acquire possession of the Demised
Premises prior to the Commencement Date of this
Lease, Landlord shall not be deemed to be in
default hereunder, and Tenant agrees to accept
possession of the Demised Premises on such date as
Landlord is able to tender the same, which date
shall be deemed to be the Commencement Date of
this Lease for all purposes, and this Lease shall
continue for the lease term specified in the Basic
Lease Information. By occupying the Demised
Premises, Tenant shall be deemed to have accepted
the same as suitable for the purposes herein
intended and to have acknowledged that the same
comply fully with Landlord's obligations,
notwithstanding that certain "punch list" type
items may not have been completed. In the event
the term of this Lease commences on a date other
than the Commencement Date, Landlord and Tenant
will, at the request of either, execute a
declaration specifying the beginning date of the
term of this Lease, and Tenant's obligations to
pay rent and other sums to Landlord hereunder
shall begin on such revised Commencement Date.
Notwithstanding anything to the contrary contained
in the Lease, neither Landlord nor Tenant shall
have the right to remeasure the current Demised
Premises, being Suite 420 of the Building.
BASIC RENTAL 3. In consideration of this Lease, Tenant promises
and agrees to pay Landlord the Basic Rental
defined in the Basic Lease Information (subject to
adjustment as hereinafter provided), without
deduction or set-off, for each month of the entire
lease term. One such monthly installment shall be
payable by Tenant to Landlord contemporaneously
with the execution of this Lease, and a like
monthly installment shall be due and payable
without demand beginning on the first day of the
calendar month following the expiration of the
first full calendar month of the lease term and on
or before the first day of each succeeding
calendar month thereafter during the term hereof.
Rent for any fractional month at the beginning of
the lease term shall be prorated based on one
three hundred sixty-fifth (1/365) of the current
annual Basic Rental for each day of the partial
month this Lease is in effect, and shall be due
and payable on or before the date on which Tenant
certifies that it has accepted the Demised
Premises pursuant to paragraph 2 hereof. In the
event any installment of the Basic Rental and any
other sums which become owing by Tenant to
Landlord under the provisions hereof are not
received within ten (10) days after the due date
thereof (without in any way implying Landlord's
consent to such late payment). Tenant, to the
extent permitted by law, agrees to pay, in
addition to said installment of the Basic Rental
and any other sums owed, a late payment charge as
determined pursuant to paragraph 24 hereof.
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SECURITY DEPOSIT 4. The Security Deposit (as defined in the Basic
Lease Information) shall be payable by Tenant to
Landlord contemporaneously with the execution of
this Lease, and shall be held by Landlord without
liability for interest as security for the
performance by Tenant of Tenant's covenants and
obligations under this Lease. It is expressly
understood that such deposit shall not be
considered an advance payment of rent or a measure
of Landlord's damages in case of default by
Tenant. Upon the occurrence of any event of
default by Tenant, Landlord may, from time to
time, without prejudice to any other remedy, use
such deposit to the extent necessary to make good
any arrearages of rent and any other damage,
injury, expense or liability caused to Landlord by
such event of default. Following any such
application of the security deposit, Tenant shall
pay to Landlord on demand the amount so applied in
order to restore the Security Deposit to its
original amount. If Tenant is not then in default
hereunder, any remaining balance of such deposit
shall be returned by Landlord to Tenant upon
termination of this Lease. If Landlord transfers
its interest in the Demised Premises during the
Lease term, Landlord may assign the security
deposit to the transferee and thereafter shall
have no further liability for the return of such
security deposit.
COST AND ESCALATION 5. OPERATING COSTS AND TAXES. (1) On or before
PROVISIONS January 1 of each year after the Commencement
Date, Landlord shall estimate the Operating Costs
and Taxes, as hereinafter defined, for the ensuing
year, per rentable square foot of space in the
Building, as determined by dividing Landlord's
estimate of Operating Costs and Taxes by the
number of rentable square feet of space in the
Building (as specified in the Basic Lease
Information). In addition to Tenant's obligations
to pay the Basic Rental and other sums hereunder,
Tenant shall pay to Landlord without deduction or
set-off (except as hereinafter provided) on each
date a payment of Basic Rental is due, one-twelfth
(1/12) of the amount by which the aforesaid
estimate of per square foot Operating Costs and
Taxes exceeds Tenant's share of the cost, on a per
rentable square foot basis, of the actual
Operating Costs and Taxes incurred by Landlord for
calendar year 1993, multiplied times the number of
rentable square feet in the Demised Premises (as
specified in the Basic Lease Information).
Landlord reserves the right to adjust the estimate
at any time during the year if actual Operating
Costs and Taxes are substantially different from
the earlier estimate, and thereafter, the payments
by Tenant pursuant to this paragraph shall be
adjusted accordingly.
(2) Within ninety (90) days after the expiration
of each calendar year, Landlord shall furnish
Tenant with a statement of the actual Operating
Costs and Taxes of the Building. In the event the
sum of the payments made by Tenant during the
preceding calendar year pursuant to subparagraph
(a) above exceeds the amounts which Tenant would
have been obligated to pay if the actual Operating
Costs and Taxes for such year were used in lieu of
Landlord's estimates thereof in calculating
Tenant's payments under subparagraph (a) above,
the difference shall be credited by Landlord to
Tenant's account against the next payments owed by
Tenant, under the provisions of this paragraph. In
the event the sum of payments made by Tenant
during the preceding calendar year pursuant to
subparagraph (a) above is less than the amount
which Tenant would have been obligated to pay if
the actual Operating Costs and Taxes for such year
were used in lieu of Landlord's estimates thereof
in calculating Tenant's payments under
subparagraph (a) above, Tenant shall pay the
amount of such difference to Landlord in cash
within thirty (30) days after receipt of a demand
by Landlord accompanied by a statement of the
actual Operating Costs and Taxes for such year.
(3) For purposes of this paragraph 5, Operating
Costs and Taxes shall mean and include the total
cost and expenses paid or incurred by Landlord in
connection with the management, operation,
maintenance and repair of the Building and the
land situated beneath the Building including,
without limitation, (i) the cost of water,
electricity, sewage treatment, gas, heating,
mechanical, ventilating, escalator and elevator
systems and the cost of supplies and equipment
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and maintenance and service contracts in
connection herewith: (ii) the cost of repairs and
general maintenance cleaning, (iii) the cost of
fire, extended coverage, boiler, sprinkler, public
liability, property damage, rent, earthquake and
other insurance; (iv) wages, salaries and other
labor costs, including taxes, insurance,
retirement, medical and other employee benefits;
(v) fees, charges and other costs, including
management fees, consulting fees, legal fees and
accounting fees, of all independent contractors
engaged by Landlord or reasonably charged by
Landlord if Landlord performs management services
in connection with the Building; (vi) the cost of
supplying, replacing and cleaning employee
uniforms; (vii) the fair market rental value of
Landlord's and the property manager's offices in
the Building; (viii) the cost of any capital
improvements made to the Building after completion
of its construction as a labor-saving device or to
effect other economics in the operation or
maintenance of the Building, or made to the
Building after the date of this Lease, that are
required under any governmental law or regulation
that was not applicable to the Building at the
time that permits for the construction thereof
were obtained, such costs to be amortized over
such reasonable period as Landlord shall
determine, together with interest on the
unamortized balance at the rate of ten percent
(10%) per annum of such higher rate as may have
been paid by Landlord on funds borrowed for the
purpose of constructing such capital improvements;
(ix) the cost of replacing any capital item
capable of being amortized pursuant to generally
accepted accounting principles which replacement
results in economics in the operation or
maintenance of the Building, which costs may be
amortized over such reasonable period as Landlord
may determine and so charged to Operating Costs
and Taxes, but not in an amount in any calendar
year greater than the actual cost saving in that
year; (x) real estate taxes and assessments for
betterments and improvements, levied against the
Building or the land situated beneath the Building
(except taxes to be paid by Tenant pursuant to
paragraph 20 hereof); (xi) any other expenses or
any other kind whatsoever reasonably incurred in
managing, operating, maintaining and repairing the
Building or the land situated beneath the
Building, provided that such expenses are
comparable to the expenses incurred by landlords
of comparable buildings in the north Dallas
suburban area. Operating Costs and Taxes shall be
adjusted to reflect full occupancy of the Building
during any period in which the Building is not
fully occupied; and (xii) Electricity Costs.
USE 6. The Demised Premises shall be used and occupied by
Tenant only for the Permitted Use, as defined in
the Basic Lease Information. Tenant shall not
occupy or use, or permit to be occupied or used,
any portion of the Demised Premises for any other
purpose, or for any business or purpose which is
unlawful in part or in whole or deemed to be
disreputable in any manner, or extra hazardous on
account of fire, nor permit anything to be done
which will in any way increase the rate of fire
insurance on the Building or its contents, and in
the event that there shall be any increase in the
rate of insurance on the Building or its contents,
as a result of Tenant's acts or conduct of
business, then such acts shall be deemed to be an
event of default hereunder and Tenant hereby
agrees to pay the amount of such increase on
demand, and acceptance of such payment shall not
constitute Landlord's waiver of such default or
Tenant or of any of Landlord's rights or remedies
hereunder. Tenant will conduct its business and
control its agents, employees and invitees in such
a manner as not to create any nuisance, nor
interfere with, annoy or disturb other tenants, or
Landlord in the management of the Building, Tenant
will maintain the Demised Premises in a clean and
healthful condition, and comply with all laws,
ordinances, orders, rules and regulations (state,
federal, municipal and other agencies or bodies
having any jurisdiction thereof) with reference to
the use, condition or occupancy of the Demised
Premises.
LANDLORD'S 7. a. Landlord agrees that so long as Tenant is
OBLIGATION occupying the Demised Premises and is not in
default under this Lease, Landlord will furnish
facilities to provide (1) water (hot and cold) at
those points of supply provided for general use by
tenants of the Building; (2) heated and
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refrigerated air conditioning in season, from 7:00
a.m. to 6:00 p.m. Monday through Friday and 8:00
a.m. to 1:00 p.m. Saturdays, except on holidays,
and at such temperatures and in such amounts as
are reasonably considered by Landlord to be
standard, such service at other times on Saturday
and on Sunday and holidays to be furnished only at
the written request of Tenant, who shall bear the
entire cost thereof; (3) janitorial service to the
premises and common areas on weekdays other than
holidays and such window washings as may from time
to time in Landlord's judgment be reasonably
required; (4) operatorless passenger elevators for
ingress and egress to the floor on which the
Leased Premises are located, in common with other
tenants, provided that Landlord may reasonably
limit the number of elevators to be in operation
at times other than during customary business
hours for the Building and on holidays; and (5)
replacement of Building standard light bulbs and
fluorescent tubes. In addition, Landlord agrees at
its cost and expense to maintain the public and
common areas of the Building, such as lobbies,
stairs, corridors and restrooms, in reasonably
good order and condition, except for damage
occasioned by Tenant, or its employees, agents or
invitees. If Tenant shall desire any of the
services specified in this Paragraph 4 at any time
other than times herein designated, such service
or services shall be supplied to Tenant only at
the written request of Tenant, delivered to
Landlord before 3:00 p.m. on the business day
preceding such extra usage, and Tenant shall pay
to Landlord (in addition to all other sums payable
to Landlord hereunder) the cost of such service or
services within ten (10) days of Tenant's receipt
of a xxxx therefore.
b. Landlord shall make available to Tenant
facilities to provide all electrical current
required by Tenant in its use and occupancy of the
Demised Premises and further shall make available
electric lighting and current for the common areas
of the Building in the manner and to the extent
deemed by Landlord to be standard. In the event
Tenant's use of electrical current (a) exceeds 110
volt power, or (b) exceeds that required for
routine lighting and operation of general office
machines which use 110 volt electrical power (such
as typewriters, dictating equipment, desk model
adding machines and the like), then Tenant shall
pay on demand the cost of providing such excess.
Without Landlord's prior written consent, Tenant
shall not install in the Leased Premises any data
processing, computer equipment or any other
equipment which it shall require for its operation
other than the normal electrical current or other
utility service. Whenever heat-generating machines
or equipment (other than general office machines
as described hereinbefore) which affect the
temperature otherwise maintained by the air
conditioning system or otherwise overload any
utility are used in the Demised Premises by
Tenant, Landlord shall have the right to install
supplemental air conditioning units or other
supplemental equipment in the Demised Premises,
and the cost thereof, including the cost of
installation, operation, use and maintenance,
shall be paid by Tenant to Landlord on demand. The
obligation of Landlord hereunder to make available
such utilities shall be subject to the rules and
regulations of the supplier of such utilities and
of any municipal or other governmental authority
regulating the business of providing such utility
service. Landlord shall not be liable or
responsible to Tenant for any loss or damage or
expense which Tenant may sustain or incur if
either the quantity or character of any utility
service is changed or is no longer available or is
no longer suitable for Tenant's requirements.
Tenant covenants and agrees that at all times its
use of electric current shall never exceed the
capacity of existing feeders to the Building or
the risers or wiring installations. Any riser or
risers or wiring to meet Tenant's excess
electrical requirements will be installed by
Landlord at the sole cost and expense of Tenant
(if, in Landlord's sole judgment, the same are
necessary and will not cause permanent damage or
injury to the Building or the Demised Premises or
cause or create a dangerous or hazardous condition
or entail excessive or unreasonable alterations,
repairs or expense or interfere with or disturb
other tenants or occupants).
c. Failure to any extent to make available, or
any slow-down,
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stoppage or interruption of, these defined
services resulting from any cause (including, but
not limited to, Landlord's compliance with (1) any
voluntary or similar governmental or business
guideline now or hereafter published or (2) any
requirements now or hereafter established by any
governmental agency, board or bureau having
jurisdiction over the operation and maintenance of
the building) shall not render Landlord liable in
any respect for damages to either person, property
or business, nor be construed as an eviction of
Tenant or work an abatement of rent, nor relieve
Tenant from fulfillment of any covenant or
agreement hereof. Should any equipment or
machinery furnished by Landlord break down or for
any cause cease to function properly, Landlord
shall use reasonable diligence to repair same
promptly, but Tenant shall have no claim for
abatement of rent or damages on account of any
interruptions in service occasioned thereby or
resulting therefrom. Notwithstanding anything to
the contrary contained in this paragraph 7 or
elsewhere in the Lease, in the event that the
Demised Premises are rendered untenantable due to
a failure to provide or interruption of services,
for any reason whatsoever, Tenant shall be
entitled to an equitable abatement of rent after
five (5) days, retroactive to the third (3rd) day
of such untenantability, such equitable abatement
of rent to continue until such services are
restored, but in the event such services are not
restored within ninety (90) consecutive days of
such untenantability, Tenant shall have the right
to terminate this Lease upon written notice to
Landlord within ten (10) days after the expiration
of such ninety (90) day period. In the event the
Lease is terminated pursuant to the aforementioned
sentence, all of Landlord's and Tenant's
obligations pursuant to the Lease shall cease,
except for those matters which expressly survive
the expiration or earlier termination of Lease.
TENANT'S REPAIRS AND 8. Tenant agrees to keep the Demised Premises,
ALTERATIONS including all fixtures installed by Tenant and any
interior plate glass and special store fronts, in
good condition and make all necessary
non-structural repairs except those covered by
fire, casualty or acts of God covered by
Landlord's fire insurance policy covering the
Building. Tenant will not in any manner defease,
damage or injure the building, and will pay the
cost of repairing any damage or injury done to the
Building or any part thereof, including without
limitation, structural damages, by Tenant or
Tenant's agents, employees, licensees and
invitees. Tenant will not make or allow to be made
any alterations or physical additions in or to the
Demised Premises, including without limitation,
painting, installing lighting, decorations, signs,
window or door lettering or advertising media of
any type on or about any portion of the Demised
Premises without the prior written consent of
Landlord, which shall not be unreasonably withheld
or delayed. The performance by Tenant of its
obligations to maintain and make repairs shall be
conducted only by contractors and subcontractors
reasonably approved in writing by Landlord, it
being understood that Tenant shall procure and
maintain and shall cause such contractors and
subcontractors engaged by or on behalf of Tenant
to procure and maintain insurance coverage against
such risks, in such amounts and with such
companies as Landlord may reasonably require in
connection with any such maintenance and repair.
If Tenant fails to make such repairs within
fifteen (15) days after the occurrence of the
damage or injury, Landlord may at its option make
such repair, and Tenant shall, upon demand
therefor, pay Landlord for the cost thereof. At
the end or other termination of this Lease, Tenant
shall deliver up the Demised Premises with all
improvements located thereon (except as otherwise
herein provided) in good repair and condition,
reasonable wear and tear excepted, and shall
deliver to Landlord all keys to the Demised
Premises. All alterations, additions or
improvements (whether temporary or permanent in
character) made in or upon the Demised Premises,
either by Landlord or Tenant, shall be Landlord's
property on termination of this Lease and shall
remain on the Demised Premises without
compensation to Tenant. All furniture, movable
trade fixtures and equipment installed by Tenant
may be removed by Tenant at the termination of
this Lease if Tenant so elects, and shall be so
removed if required by Landlord, or if not so
removed shall, at the option of Landlord,
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become the property of Landlord. All such
installations, removals and restoration shall be
accomplished in a good workmanlike manner so as
not to damage the Demised Premises or the primary
structure or structural qualities of the building
or the plumbing, electrical lines or other
utilities.
INDEMNITY 9. Landlord shall not be liable for and Tenant will
indemnify and save harmless Landlord from any and
all fines, suits, claims, demands, losses and
actions of any kind (including attorney's fees)
for any injury to person or damage to or loss of
property on or about the premises caused by the
negligence, misconduct or any breach, violation or
nonperformance of any covenant hereof on the part
of Tenant, its employees, agents, subtenants,
licensees, invitees or by any other person
entering the premises or the Building under
expressed or implied invitation of Tenant, or
arising out of Tenant's use of the premises.
Landlord shall not be liable or responsible for
any loss or damage to any property or person
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 other matter
beyond the reasonable control of Landlord, or for
any damage or inconvenience which may arise
through repair or alteration of any part of the
Building (except in the event of Landlord's or its
agent's gross negligence in which event Landlord
shall be liable to Tenant to the extent of any
property damages or bodily injuries), or failure
to make repairs, or from any cause whatever except
Landlord's gross negligence or willful wrong.
ASSIGNMENT AND 10. a. Tenant shall not, without the prior written
SUBLETTING consent of Landlord, not to be reasonably withheld
or delayed, (1) assign or in any manner transfer
this Lease or any estate or interest therein; (2)
permit any assignment of this Lease or any estate
or interest therein by operation of law; (3)
sublet the Demised Premises or any part thereof;
(4) grant any license, concession or other right
of occupancy of any portion of the Demised
Premises; or (5) permit the use of the Demised
Premises by any parties other than Tenant, its
agents and employees and any such acts without
Landlord's prior written consent shall be void and
of no effect. Landlord agrees to consent to any
assignment by Tenant to any corporation succeeding
to substantially all the business and assets of
Tenant by merger, consolidation, purchase of
assets or otherwise, or to any assignment or
subletting to a corporation which is an affiliate
of Tenant. Tenant shall not assign this lease or
sublet all or any portion of the Demised Premises
for any monthly rental which is, or could become,
less than the Basic Rental from time to time due
hereunder, and any such act shall be void and of
no effect. Consent by Landlord to one or more
assignments or sublettings shall not operate as a
waiver of Landlord's rights as to any subsequent
assignments and sublettings. Notwithstanding any
assignment or subletting, Tenant and any guarantor
of Tenant's obligations under this Lease shall at
all times remain fully responsible and liable for
the payment of the rent herein specified and for
compliance with all of Tenant's other obligations
under this Lease. If an event of default, as
hereinafter defined should occur while the Demised
Premises or any part thereof are then assigned or
sublet, Landlord, in addition to any other
remedies herein provided or provided by law, may
at its option collect directly from such assignee
or sublessee all rents becoming due to Tenant
under such assignment or sublease and apply such
rent against any such sums due to Landlord by
Tenant hereunder, and Tenant hereby authorizes and
directs any such assignee or sublessee to make
such payments of rent directly to Landlord upon
receipt of notice from Landlord. No direct
collection by Landlord from any such assignee or
sublessee shall be construed to constitute a
novation or a release of Tenant or any guarantor
of Tenant from the further performance of its
obligations hereunder. Receipt by Landlord of rent
or additional payments from any assignee,
sublessee or occupant of the Demised Premises
shall not be deemed a waiver of the covenant in
this lease contained against assignment and
subletting or a release of Tenant under this
Lease. The receipt by Landlord from any such
assignee or sublessee obligated to make payments
of rent or additional payments shall be a full and
complete release, discharge
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and acquittance to such assignee or sublessee to
the extent of any amount so paid to Landlord.
Landlord is authorized and empowered, on behalf of
Tenant, to endorse the name of Tenant upon any
check, draft or other instrument payable to Tenant
evidencing payment of rent or additional payments,
or any part thereof, and to receive and apply the
proceeds therefrom in accordance with the terms
hereof. Tenant shall not mortgage, pledge or
otherwise encumber its interest in this Lease or
in the Demised Premises.
b. If Tenant requests Landlord's consent to an
assignment of the Lease or subletting of all or a
part of the Demised Premises, it shall submit to
Landlord, in writing, the name of the proposed
assignee or subtenant and the nature and character
of the business of the proposed assignee or
subtenant, the term, use, rental rate and other
particulars of the proposed subletting or
assignment, including without limitation, evidence
reasonably satisfactory to Landlord that the
proposed subtenant or assignee is financially
responsible and will immediately occupy and
thereafter use the Demised Premises (or any sublet
portion thereof) for the remainder of the lease
term (or for the entire term of the sublease ,if
shorter). Landlord shall have the option (to be
exercised within thirty [30] days from submission
of Tenant's written request) to cancel this Lease
(or the applicable portion thereof as to a partial
subletting) as of the Commencement Date stated in
the above-mentioned subletting or assignment. If
Landlord elects to cancel this Lease as stated,
then the terms of this Lease, and the tenancy and
occupancy of the Demised Premises by Tenant
thereunder, shall cease, terminate, expire and
come to an end with respect to that portion of the
Demised Premises so assigned or sublet as if the
cancellation date were the original termination
date of this Lease and Tenant shall pay to
Landlord all costs or charges which are the
responsibility of Tenant hereunder with respect to
that portion of the Demised Premises so assigned
or sublet. Thereafter, Landlord may lease the
Demised Premises or any other portion of the
building to the prospective subtenant or assignee
without liability to Tenant. If Landlord does not
thus cancel this Lease, the terms and provisions
of paragraph "a" hereof will apply.
c. If Landlord consents to any subletting or
assignment by Tenant as hereinabove provided, and
subsequently any rents received by tenant under
any such sublease are in excess of the rent
payable by Tenant under this Lease, or any
additional consideration is paid to Tenant by the
assignee under such assignment, then Landlord may,
at its option, either (i) declare such excess
rents under any sublease or any additional
considerations for an assignment to be due and
payable by Tenant to Landlord as additional rent
hereunder, or (ii) elect to cancel this Lease as
provided in paragraph "b" hereof.
d. Landlord shall have the right to transfer,
assign and convey, in whole or in part, the
Building and any and all of its rights under this
Lease, and in the event Landlord assigns its
rights under this Lease, Landlord shall thereby
be released from any further obligations
hereunder, and Tenant agrees to look solely to
such successor in interest of the Landlord for
performance of such obligations.
INSPECTION 11. Upon reasonable prior notice, except in the case
of an emergency or cleaning of the Demised
Premises where no notice is required, Landlord, or
its agents and representatives, shall have the
right to enter into and upon any and all parts of
the Demised Premises at all reasonable hours (or,
if any emergency, at any hour) to inspect same or
make repairs, alternations or additions as
Landlord may deem necessary, or during business
hours to show the Demised Premises to prospective
tenants during only the last ninety (90) days of
the term, to purchasers or lenders, and Tenant
shall not be entitled to any abatement or
reduction of rent by reason thereof, nor shall
such be deemed to be an actual or constructive
eviction.
SUBORDINATION 12. This Lease and all rights of Tenant hereunder are
subject and subordinate to (i) any and all ground
leases or underlying leases that now or hereafter
affect any portion of the Demised Premises, the
Building or the land situated beneath the
Building; (ii) any and all
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deeds of trust, mortgages and other instruments of
security that now or hereafter affect any portion
of the aforesaid leases, the Demised Premises, the
Building or the land situated beneath the
Building; and (iii) any and all increases,
renewals, modifications, consolidations,
replacements and extensions of any such leases,
deeds of trust, mortgages or instruments of
security, and all advances made on the security of
the foregoing. This provision is hereby declared
by Landlord and Tenant to be self-operative and no
further instrument shall be required to effect
such subordination of this Lease. Tenant, without
expense to Landlord, shall, however, upon demand
at any time or times execute, acknowledge and
deliver to Landlord any and all instruments and
certificates that in the judgment of Landlord may
be necessary or proper to confirm or evidence such
subordination. Notwithstanding the generality of
the foregoing provisions of this paragraph, Tenant
agrees that any lessor or mortgagee described in
this paragraph shall have the right at any time to
subordinate any such ground leases, underlying
leases, deeds of trust, mortgages or other
instruments of security to this Lease on such
terms and subject to such conditions as such
lessor or mortgagee may deem appropriate in its
discretion. Tenant further covenants and agrees
upon demand by Landlord's mortgagee at any time,
before or after the institution of any proceedings
for the foreclosure of any such deeds of trust,
mortgages or other instruments of security, or
sale of the Building pursuant to any such deeds of
trust, mortgages or other instruments of security,
to attorn to such purchaser upon any such sale and
to recognize such purchaser as Landlord under this
Lease, which covenant shall survive any such
foreclosures sale or trustee's sale. Tenant shall,
upon demand at any time or times, before or after
any such foreclosure sale or trustee's sale,
execute, acknowledge and deliver to Landlord's
mortgagee any and all instruments and certificates
that in the judgment of Landlord's mortgagee may
be necessary or proper to confirm or evidence such
attornment, and Tenant hereby irrevocably
authorizes Landlord's mortgagee to execute,
acknowledge and deliver any such instruments and
certificates on Tenant's behalf.
LEASEHOLD IMPROVEMENTS 13. In preparing the Demised Premises for occupancy
by Tenant, Landlord shall be required to bear
certain expenses of installing the items
indicated on Exhibit "C" attached hereto, only
to the extent indicated on said Exhibit "C". All
installations, additions and improvements to the
Demised Premises in excess thereof shall be
installed at the sole cost and expense of Tenant
(which shall be payable on Landlord's demand),
but only in accordance with plans and
specifications which have been previously
submitted to and approved in writing by
Landlord, such work to be performed only by
Landlord or by contractors and subcontractors
approved in writing by Landlord, it being
understood that Tenant shall procure and maintain
and shall cause such contractors, subcontractors
and other persons engaged by or on behalf of
Tenant to procure and maintain insurance coverage
against such risks, in such amounts and with such
companies as Landlord may require in connection
with the installation of such improvements.
Landlord has made no representations as to the
conditions of the Demised Premises or the
building, or to remodel, repair or decorate,
except as expressly set forth herein.
MECHANICS' LIEN 14. Tenant will not permit any mechanic's lien or
liens to be placed upon the Demised Premises or
the Building during the lease term caused by or
resulting from any work performed, materials
furnished or obligation incurred by or at the
request of Tenant, and in the case of the filing
of any such lien Tenant will promptly pay same. If
default in the payment thereof shall continue for
twenty (20) days after written notice thereof from
Landlord to Tenant, Landlord shall have the right
and privilege at Landlord's option of paying the
same or any portion thereof without inquiry as to
the validity thereof, and any amounts so paid,
including expenses and interest, shall be so much
additional indebtedness hereunder due from Tenant
to Landlord and shall be repaid to Landlord
immediately on demand accompanied by a xxxx
therefor.
SUBROGATION 15. Each party hereto hereby waives any cause of
action it might have against the other party on
account of any loss or damage that is
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insured against under any insurance policy (to the
extent that such loss or damage is recoverable
under such insurance policy) that covers the
Building, the Demised Premises, Landlord's or
Tenant's fixtures, personal property, leasehold
improvements or business and which names Landlord
or Tenant, as the case may be, as a party insured,
it being understood and agreed that this provision
is cumulative of paragraph 8 hereof. Each party
hereto agrees that it will request its insurance
carrier to endorse all applicable policies waiving
the carrier's rights of recovery under subrogation
or otherwise against the other party.
LIABILITY INSURANCE 16. Tenant shall procure and maintain throughout the
lease term a policy or policies of insurance at
its sole cost and expense and in amounts of not
less than a combined single limit of $1,000,000 or
such other amounts as Landlord may from time to
time require, insuring Tenant and Landlord against
any and all liability to the extent obtainable for
injury to or death of a person or persons or
damage to property occasioned by or arising out of
or in connection with the use, operation and
occupancy of the premises. Tenant shall furnish a
certificate of insurance and such other evidence
satisfactory to Landlord of the maintenance of all
insurance coverages required hereunder, and Tenant
shall obtain a written obligation on the part of
each insurance company to notify at least thirty
(30) days prior to cancellation or material change
of any such insurance.
CONDEMNATION 17. If the whole or any substantial part of the
Demised Premises or if the Building or any portion
thereof which would leave the remainder of the
Building unsuitable for use as an office building
comparable to its use on the Commencement Date,
shall be taken or condemned for any public or
quasi-public use under governmental law, ordinance
or regulation, or by right of eminent domain, or
by private purchase in lieu thereof, then Landlord
may, at its option, terminate this Lease and the
rent shall be abated during the unexpired portion
of this Lease, effective when the physical taking
of said Demised Premises shall occur. In the event
this Lease is not terminated, the rent for any
portion of the Demised Premises so taken or
condemned shall be abated during the unexpired
term of this Lease effective when the physical
taking of said portion of the Demised Premises
shall occur. All compensation awarded for any such
taking or condemnation, or sale proceeds in lieu
thereof, shall be the property of Landlord, and
Tenant shall have no claim thereto, the same being
hereby expressly waived by Tenant, except for any
portions of such award or proceeds which are
specifically allocated by the condemning or
purchasing party for the taking of or damage to
trade fixtures of Tenant, which Tenant
specifically reserves to itself.
FIRE & OTHER CASUALTY 18. In the event that the Building or the Demised
Premises is totally destroyed by fire, tornado or
other casualty, or is damaged to the extent that
rebuilding or repairs cannot in Landlord's
reasonable estimation be completed within two
hundred forty (240) days, as to the Building, and
ninety (90) days, as to the Demised Premises,
after the date of such damage, either Tenant or
Landlord may, at its option, terminate this Lease,
in which event the rent shall be abated during the
unexpired portion of this Lease, effective with
the date of occurrence of such damage. In the
event the Building or the Demised Premises is
damaged by fire, tornado or other casualty covered
by Landlord's insurance, but only to such extent
that rebuilding or repairs can in the Landlord's
estimation be completed within two hundred forty
(240) days, as to the Building, and ninety (90)
days, as to the Demised Premises, after the date
of such damage, this Lease shall not terminate and
Landlord shall, within thirty (30) days after the
date of such damage, commence to rebuild or repair
the Building and/or the Demised Premises and shall
proceed with reasonable diligence to restore the
Building and/or the Demised Premises to
substantially the condition which existed
immediately prior to the happening of the
casualty, except that Landlord shall not be
required to rebuild, repair or replace any part of
the partitions, fixtures and other improvements
which may have been placed by Tenant or other
tenants within the Building or the Demised
Premises. Landlord shall allow Tenant a fair
diminution of rent during the time the Demised
Premises are
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unfit for occupancy. In the event any mortgagee
under a deed of trust, mortgage or instrument of
security on any portion of any ground lease or
underlying lease, the Building, or the land
situated beneath the Building should require that
the insurance proceeds be used to retire the debt
secured by such document, Landlord shall have no
obligation to rebuild and this Lease shall
terminate upon notice by Landlord to Tenant.
Except as provided herein, any insurance which may
be carried by Landlord or Tenant against loss or
damage to the Building or to the Demised Premises
shall be for the sole benefit of the party
carrying such insurance and under its sole
control.
HOLDING OVER 19. In the event of any holding over by tenant after
the expiration or termination of this Lease,
unless the parties hereto otherwise agree in
writing such holding over shall constitute and be
construed as a tenancy at will, subject to
termination by Landlord at any time, or by Tenant
at any time upon at least thirty (30) days'
advance written notice, and all of the other
terms and provisions of this Lease shall be
applicable during that period, except that the
daily rent payable by Tenant shall be equal to
the daily rent in effect for the last month of
the term of this Lease, plus 50% of such amount.
The inclusion of the preceding sentence herein
shall not be construed as Landlord's consent for
the Tenant to hold over.
TAXES ON TENANT'S 20. Tenant shall be liable for all taxes levied or
PROPERTY assessed against personal property, furniture,
improvements, additions or fixtures placed by
Tenant in the Demised Premises. If any such taxes
for which Tenant is liable are levied or assessed
against Landlord or Landlord's property and if
Landlord elects to pay the same or if the
assessed value of Landlord's property is
increased by inclusion of personal property,
furniture or fixtures placed by Tenant in the
Demised Premises, and Landlord elects to pay the
taxes based on such increase, Tenant shall pay to
Landlord upon demand that part of such taxes for
which Tenant is primarily liable hereunder.
EVENTS OF DEFAULT 21. The following events shall be deemed to be events
of default by Tenant under this Lease:
a. Tenant shall fail to pay any installment of
rent herein provided for, or any other sums
payable by Tenant hereunder (or under any other
lease now or hereafter executed by Tenant in
connection with space in the Building), and such
failure shall continue for a period of five (5)
days from the due date, provided that no such
failure shall be deemed an event of default until
Landlord has provided Tenant two (2) written
notices of default in any twelve (12) month
period;
b. Tenant shall fail to comply with any term,
provision or covenant of this Lease (or any other
lease now or hereafter executed by Tenant in
connection with space in the building), other
than the payment of rent or other sums payable by
Tenant, and shall not cure such failure within
twenty (20) days after written notice thereof
from Landlord to Tenant;
c. Tenant or any guarantors of Tenant's
obligations hereunder shall make an assignment
for the benefit of creditors;
d. Tenant or any guarantors of Tenant's
obligations hereunder file a petition under any
section or chapter of the Bankruptcy Act of
1978.11 U.S.C. Section Xxxx 101 et seq., as
amended, or under any similar law or statute of
the United States and/or any State thereof or
Tenant shall be adjudged bankrupt or insolvent in
proceedings filed against Tenant thereunder;
e. A receiver or trustee shall be appointed for
all or substantially all of the assets of Tenant
or any guarantors of Tenant's obligations
hereunder and such receivership shall not be
terminated or stayed within thirty (30) days; or
f. Tenant shall desert or vacate any substantial
portion of the Demised Premises for a period of
thirty (30) days or more without
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Landlord's prior written approval.
REMEDIES 22. Upon the occurrence of any event of default by
Tenant, Landlord shall have the option to pursue
any one or more of the following remedies without
any notice or demand whatsoever:
a. Terminate this Lease in which event Tenant
shall immediately surrender the Demised Premises
to Landlord, and if Tenant fails to so do,
Landlord may, without prejudice to any other
remedy which it may have for possession of the
Demised Premises or arrearages in rent, enter upon
and take possession of the Demised Premises and
expel or remove Tenant and any other person who
may be occupying the Demised Premises or any part
thereof, without being liable for prosecution or
any claim or damages therefor; and Tenant agrees
to pay Landlord on demand the amount of all loss
and damage which Landlord may suffer by reason of
such termination, whether through inability to
relet the Demised Premises on satisfactory terms
or otherwise.
b. Enter upon and take possession of the Demised
Premises and expel or remove Tenant and any other
person who may be occupying the Demised Premises
or any part thereof, by force if necessary,
without being liable for prosecution or any claim
for damages therefor, and if Landlord elects,
relet the Demised Premises and receive the rent
therefor; and Tenant agrees to pay Landlord on
demand any deficiency that may arise by reason of
such reletting.
c. Enter upon the Demised Premises without being
liable for prosecution or any claim for damages
therefor, and do whatever Tenant is obligated to
do under this Lease; and Tenant agrees that
Landlord shall not be liable for any damages
resulting to the Tenant from such action.
No re-entry or taking possession of the
Demised Premises by Landlord shall be construed as
or deemed as an election by Landlord to terminate
this Lease, unless a written notice of such
intention signed by Landlord and addressed to
Tenant be delivered to Tenant. Notwithstanding any
such reletting or re-entry or taking possession,
Landlord may at any time thereafter elect to
terminate this Lease for a previous default.
Pursuit of any of the foregoing remedies shall not
preclude pursuit of any of the other remedies
herein provided or any other remedies provided by
law, nor shall pursuit if any remedy herein
provided constitute a forfeiture or waiver of any
rent due to Landlord hereunder or of any damages
occurring to Landlord by reason of the violation
of any of the terms, provisions and covenants
herein contained. Landlord's acceptance of rent
following an event of default hereunder shall not
be construed as Landlord's waiver of such event of
default. No waiver by Landlord of any violation or
breach of any of the terms, provisions and
covenants herein contained and no failure to give
notice thereof shall be deemed or construed to
constitute a waiver of any other violation or
default. The loss or damage that Landlord may
suffer by reason of termination of this Lease or
the deficiency from any reletting as provided for
above shall include the expense of repossession
and any repairs or remodeling undertaken by
Landlord following possession. Should Landlord at
any time terminate this Lease for any default, in
addition to any other remedy Landlord may have,
Landlord may recover from Tenant all damages
Landlord may incur by reason of such default,
including the cost of recovering the Demised
Premises and the loss of rental for the remainder
of the lease term. Forbearance by Landlord to
enforce one or more of the remedies provided in
this paragraph, paragraph 24, or anywhere else in
this Lease, or at law, upon an event of default
shall not be deemed or construed to constitute a
waiver of such default or remedies.
SURRENDER OF 23. No act or thing done by the Landlord or its agents
PREMISES during the term hereby granted shall be deemed an
acceptance of a surrender of the Demised Premises,
and no agreement to accept a surrender of the
Demised Premises shall be valid unless the same be
made in writing and signed by Landlord, and
addressed to Tenant.
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ATTORNEY'S FEES AND 24. Should it become necessary for either party,
INTEREST ON PAST DUE because of a default hereunder, to bring any SUMS
SUMS action under this Lease or to consult or place
said Lease with an attorney concerning or for the
enforcement of any of such party's rights
hereunder, the non-prevailing party agrees to pay
the prevailing party's reasonable attorney's fees.
All installments of Basic Rental and other sums
due to Landlord hereunder not paid by Tenant when
due pursuant to the provisions hereof shall bear
interest from the due date until paid, at the rate
(the "Rate") of 5% per annum above the per annum
prime commercial lending rate from time to time
announced by Texas Commerce Bank-Dallas, N.A., or
its successors. In the event Texas Commerce
Bank-Dallas, N.A., or its successors cease to
announce a prime commercial lending rate, or such
figure is otherwise indeterminable, then the Rate
shall be 10% per annum above the per annum rate
from time to time in effect which the Federal
Reserve Bank of the Federal Reserve District which
includes Dallas, Texas, charges for advances to
member banks. In the event the Rate would
otherwise exceed the maximum legal rate of
interest which Tenant could be charged, the Rate
shall be said maximum legal rate for all such
periods of time. Said late payment charge shall
constitute liquidated damages and shall be for the
purpose of reimbursing Landlord for the additional
costs and expenses which Landlord and Tenant
presently expect Landlord to incur in connection
with the handling and processing of late
installment payments of the Basic Rental and such
other sums which become owing by Tenant to
Landlord hereunder. Landlord and Tenant expressly
covenant and agree that in the event of any such
late payment(s) by Tenant, the damages so
resulting to Landlord would be difficult to
ascertain precisely, and that the foregoing charge
constitutes a reasonable and good faith estimate
by the parties of the extent of such damages.
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QUIET ENJOYMENT 26. Provided Tenant is not in default (beyond any
period given Tenant to cure such default) in the
performance of any of the terms, covenants or
conditions of this Lease on Tenant's part to be
performed, including the payment of rent or
additional payments, Tenant shall peaceably and
quietly hold and enjoy the Demised Premises during
the term hereof and any extensions thereof, free
from interference or disturbance by Landlord and
other persons subject to the terms and conditions
of this Lease; provided, however, Landlord shall
not be liable for any such interference or
disturbance by other persons, nor shall Tenant be
released from any of its obligations pursuant to
this Lease because of such interference or
disturbance.
NOTICES 27. Each provision of this Lease or of any applicable
governmental laws, ordinances, regulations and
other requirements with reference to the sending,
mailing or delivery of any notice, or with
reference to the making of any payment by Tenant
to Landlord, shall be deemed to be complied with
when and if the following steps are taken:
a. All rent and other payments required to be
made by Tenant to Landlord hereunder shall be
payable to Landlord at the address set forth in
the Basic Lease Information, or at such other
address as Landlord may specify from time to time
by written notice delivered in accordance
herewith; and
b. Any notice or document required to be
delivered hereunder shall be deemed to be
delivered, whether actually received or not, when
deposited in the United States mail, postage
prepaid, certified or registered mail (with or
without return receipt requested), addressed to
the parties hereto at the respective addresses set
forth in the Basic Lease Information, or at such
other address as has been theretofore specified by
written notice delivered in accordance herewith.
FORCE MAJEURE 28. Whenever a period of time is herein prescribed for
action to be taken by Landlord, Landlord shall not
be liable or responsible for, and there shall be
excluded from the computation of any such period
of time, any delays due to strikes, riots, acts of
God, shortages of labor or materials, war,
governmental laws, regulations or restrictions, or
any other causes of any kind whatsoever which are
beyond the control of Landlord.
SEPARABILITY 29. If any clause or provision of this Lease is
illegal, invalid or unenforceable under present or
future laws effective during the term of this
Lease, then and in that event, it is the intention
of the parties hereto that the remainder of this
Lease shall not be affected thereby, and it is
also the intention of the parties to this Lease
that, in lieu of each clause or provision of this
Lease that is illegal, invalid or unenforceable,
there be added as a part of this Lease a clause or
provision as similar in terms to such illegal,
invalid or unenforceable clause or provision as
may be possible and be legal, valid and
enforceable.
AMENDMENTS; BINDING 30. This Lease may not be altered, changed or amended,
EFFECT except by an instrument in writing signed by both
parties hereto. No provision of this Lease shall
be deemed to have been waived by Landlord unless
such waiver is in writing signed by Landlord, and
addressed to Tenant, nor shall any custom or
practice which may evolve between the parties in
the administration of the terms hereof be
construed to waive or lessen the right of Landlord
to insist upon the performance by Tenant in strict
accordance with the terms hereof. The terms,
provisions, covenants and conditions contained in
this Lease shall apply to, inure to the benefit of
and be binding upon the parties hereto, and upon
their respective heirs, successors in interest,
legal representatives and permitted assigns,
except as otherwise herein expressly provided.
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RULES AND 31. Tenant and Tenant's employees, agents, licensees,
REGULATIONS employees and invitees will comply fully with all
requirements of the rules of the Building
attached hereto as Exhibit "B" and made a part
hereof as though fully set out herein. Landlord
shall at all times have the right to change such
rules and regulations, to amend them or to
promulgate other rules and regulations in such
manner as Landlord shall deem advisable for the
safety, care and cleanliness of the Building and
related facilities, and for preservation of good
order therein, all of which rules and
regulations, changes and amendments will be
forwarded to Tenant in writing and shall be
carried out and observed by Tenant. Tenant shall
further be responsible for compliance with such
rules and regulations by the employees, agents,
licensees, visitors and invitees of Tenant.
SUBSTITUTION OF SPACE 32. At any time after the initial twelve (12) month
term of this Lease, Landlord may substitute for
the Demised Premises other premises in the
Building (the "New Premises") in which event the
New Premises shall be deemed to be the Demised
Premises for all purposes hereunder, provided;
a. The New Premises shall be approximately 2,500
or greater rentable square feet and shall be
similar in appropriateness for Tenant's purposes;
b. Any such substitution shall be effected for the
purpose of accommodating a tenant that will occupy
all or a substantial portion of the floor on
which the Demised Premises are located; and
c. If, at the time of any such substitution,
Tenant is occupying the Demised Premises or has
borne costs for work which will have to be redone
as a result of the relocation, Landlord shall pay
the expense in excess of the amounts Landlord
would have paid if Landlord had not made its
election to substitute the New Premises under
this paragraph; of any architectural plans
required to design such New Premises; of moving
Tenant, its property and equipment from the
Demised Premises to the New Premises; and of
completing the New Premises with improvements at
least equal to those located in the Demised
Premises.
EXHIBITS AND 33. All exhibits, attachments, riders and addenda
ATTACHMENTS referred to in this Lease are incorporated in
this Lease and made a part hereof for all intents
and purposes.
Exhibit A - Outline of Demised Premises
Exhibit B - Building Rules and Regulations
Exhibit C - Tenant Improvements
Exhibit D - Parking Agreement
Exhibit E - Extension Option
GENDER 34. Words of any gender used in this Lease shall be
held and construed to include any other gender,
and words in the singular number shall be held to
include the plural, unless the context requires
otherwise.
CAPTIONS 35. The captions contained in this Lease are for
convenience of reference only and in no way limit
or enlarge the terms and conditions of this Lease.
PREPAYMENTS 36. Tenant shall have no right to make any payment of
rent or nay other payments to Landlord hereunder
more than thirty (30) days in advance of the date
such sums are due to Landlord.
TENANT'S REMEDIES 37. In the event Landlord defaults in the performance
of any of its obligations to Tenant hereunder, or
breaches any warranty or representation, express
or implied, to Tenant in connection with this
Lease or the Demised Premises, Tenant shall have
no right of set-off against payments due to
Landlord hereunder and shall have no right to
terminate this Lease, and Tenant hereby waives
such remedies and Tenant's sole remedy shall be
to bring suit against Landlord for damages.
Landlord shall have no personal liability to
Tenant for any such default or breach by
Landlord, and Tenant specifically agrees to
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look solely to Landlord's interest in the Building
and the land situated thereunder for payment of any
damages suffered by Tenant. Pending resolution of any
controversy hereunder, Tenant shall continue to pay
to Landlord all sums which are and become due to
Landlord hereunder, without deduction or set-off.
CHANGE OF BUILDING 38. Landlord reserves the right at any time to change
NAME the name by which the Building is designated.
ESTOPPEL CERTIFICATES 39. Tenant agrees to furnish from time to time, when
requested by Landlord, the holder of any deed of
trust, mortgage or other instrument of security, or
by the lessor under any ground lease or underlying
lease covering all or any part of the Building or
the improvements therein or the land situated
beneath the Building, or any interest of Landlord
thereto, a certificate signed by Tenant confirming
and containing such factual certifications and
representations, to the current actual knowledge of
Tenant, deemed appropriate by the party requesting
such certificate, and Tenant shall, within ten (10)
days following receipt of said proposed certificate
from Landlord, return a fully executed copy of said
certificate to Landlord. In the event Tenant shall
fail to return a fully executed copy of such
certificate to Landlord within the foregoing ten-day
period, then Tenant shall be deemed to have approved
and confirmed all of the terms, certifications and
representations contained in such certificate.
JOINT AND SEVERAL 40. If there is more than one Tenant, the obligations
LIABILITY hereunder imposed upon Tenant shall be joint and
several. If there is a guarantor of Tenant's
obligations hereunder, the obligations hereunder
imposed upon Tenant shall be the joint and several
obligations of Tenant and such guarantor, and
Landlord need not first proceed against Tenant
before proceeding against such guarantor nor shall
any such guarantor be released from its guaranty for
any reason whatsoever, including without limitation,
in case of any amendments hereto, waiver hereof or
failure to give such guarantor any notices hereunder.
CERTAIN RIGHTS 41. Landlord shall have the following rights,
RESERVED BY exercisable without notice and without liability to
LANDLORD Tenant for damage or injury to property, persons or
business and without effecting an eviction,
constructive or actual, or disturbance of Tenant's
use or possession or giving rise to any claim or
set-off or abatement of rent:
a. To decorate and to make repairs, alterations,
additions, changes or improvements, whether
structural or otherwise, in and about the Building,
or any part thereof, and for such purposes to enter
upon the Demised Premises, after reasonable prior
notice to Tenant, and, during the continuance of any
such work, to temporarily close doors, entry ways,
public space and corridors in the building, to
interrupt or temporarily suspend Building services
and facilities and to change the arrangement and
location of entrances or passageways, doors and
doorways, corridors, elevators, stairs, toilets or
other public parts of the Building, so long as the
Demised Premises are reasonably accessible.
b. To have and retain a paramount title to the
Demised Premises free and clear of any act of Tenant
purporting to burden or encumber them.
c. To grant to anyone the exclusive right to conduct
any business or render any service in or to the
Building, provided such exclusive right shall not
operate to exclude Tenant from the use expressly
permitted herein.
d. To prohibit the placing of vending or dispensing
machines of any kind in or about the Demised
Premises without the prior written permission of
Landlord.
e. To have access for Landlord and other tenants of
the Building to any mail chutes located on the
Demised Premises according to the rules of the
United States Postal Service.
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f. To take all such reasonable measures as
Landlord may deem advisable for the security
of the Building and its occupants, including
without limitation, the search of all persons
entering or leaving the Building, the
evacuation of the Building for cause,
suspected cause, or for drill purposes, the
temporary denial of access to the Building,
and the closing of the Building after normal
business hours and on Saturdays, Sundays and
holidays, subject, however, to Tenant's right
to admittance when the Building is closed
after normal business hours under such
reasonable regulations as Landlord may
prescribe from time to time which may include
by way of example but not of limitation, that
persons entering or leaving the Building,
whether or not during normal business hours,
identify themselves to a security officer by
registration or otherwise and that such
persons establish their right to enter or
leave the Building.
NOTICE TO LENDER 42. If the Demised Premises or the Building or
any part thereof are at any time subject to a
first mortgage or a first deed of trust or
other similar instrument and this Lease or
the rentals are assigned to such mortgagee,
trustee or beneficiary and the Tenant is
given written notice thereof, including the
post office address of such assignee, then
the Tenant shall not take any action to
terminate this Lease or xxxxx rentals for
any default on the part of the Landlord
without first giving written notice by
certified or registered mail, return receipt
requested, to such assignee, specifying the
default in reasonable detail, and affording
such assignee a reasonable opportunity to
make performance, at its election, for and
on behalf of the Landlord.
LOSS OR THEFT 43. Landlord shall not be responsible in any
manner to Tenant, its agents, employees,
licensees or invitees for any property lost
or stolen from the Demised Premises or any
other portion of the Building, the Building's
garage or the land situated beneath the
Building.
PARKING 44. Landlord may make, modify and enforce rules
and regulations relating to the parking of
automobiles in the parking garage adjacent to
the Building, and Tenant agrees to abide by
such rules and regulations. Tenant shall have
the right to use the parking garage adjacent
to the Building in accordance with said rules
and regulations and the provisions of Exhibit
"D" attached hereto.
MISCELLANEOUS 45. a. Any approval by Landlord or Landlord's
architects and/or engineers of any of
Tenant's drawings, plans and specifications
which are prepared in connection with any
construction of improvements in the Demised
Premises shall not in any way be construed or
operate to bind Landlord or to constitute a
representation or warranty of Landlord as to
the adequacy or sufficiency of such drawings,
plans and specifications, or the improvements
to which they relate, for any use, purpose or
condition, but such approval shall merely be
the consent of Landlord as may be required
hereunder in connection with Tenant's
construction of improvements in the Demised
Premises in accordance with such drawings,
plans and specifications.
b. Each and every covenant and agreement
contained in this Lease is, and shall be
construed to be, a separate and independent
covenant and agreement.
c. There shall be no merger of this Lease or
the leasehold estate hereby created with the
fee estate in the Demised Premises or any
part thereof by reason of the fact that the
same person may acquire or hold, directly or
indirectly, this Lease or the leasehold
estate hereby created or any interest in this
Lease or in such leasehold estate as well as
the fee estate in the leasehold premises or
any interest in such fee estate.
d. Neither Landlord nor Landlord's agents or
brokers have made any representations or
promises with respect to the Demised
Premises, the Building or the land except as
herein expressly set forth and no rights,
easements or licenses are acquired by Tenant
by implication or otherwise except as
expressly set forth in the provisions of this
Lease.
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e. The submission of this Lease to Tenant
shall not be construed as an offer, nor shall
Tenant have any rights with respect thereto
unless and until Landlord shall, or shall
cause its managing agent to, execute a copy
of this Lease and deliver the same to Tenant.
Dated as of the date first above written.
TENANT: LANDLORD:
PRESS PASS, L.P., NEW ENGLAND MUTUAL LIFE INSURANCE COMPANY
a Texas limited partnership
By: /s/ Xxxxxx X. Xxxxxxx , By: Xxxxxx Real Estate Advisors, Inc.
----------------------- asset manager and advisor
General Partner hereunto duly authorized
By: Xxxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxx
----------------------- ---------------------------------
its duly authorized agent
Title: President XXXXX X. XXXXX
-------------------- MANAGING DIRECTOR
18
FIRST AMENDMENT OF LEASE
This First Amendment of Lease (the "First Amendment") is entered into this
16th day of March, 1994, to be effective as of January 14, 1994 (the "Effective
Date") by and between New England Mutual Life Insurance Company ("Landlord")
and Press Pass, L.P., a Texas limited partnership ("Tenant").
WITNESSETH
WHEREAS, on January 7, 1993, Landlord and Tenant entered into that certain
Lease ("Lease") for premises consisting of 2,500 rentable square feet on the
fourth (4th) floor, Suite 420 ("Demised Premises") of the building located at
00000 Xxxxxx Xxxxx, Xxxxxx, Xxxxx ("Building"), which by this reference the
Lease is incorporated herein for all purposes.
WHEREAS, Tenant desires to extend the Lease Term.
NOW, THEREFORE, for in consideration of mutual terms and conditions
expressed herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. The Lease Term is hereby extended from January 14, 1994, through the
period ending on January 14, 1996 ("Extended Term"). All references in the
Lease to the Lease Term shall refer to the Extended Term expiring on January
14, 1996.
2. Base Rental for the Demised Premises for the Extended Term shall
equal $2,187.50 per month ($10.50 per annum, per rentable square foot of the
Demised Premises) beginning on the Effective Date and ending on January 14,
1996. Section 5. A. of the Lease shall be amended to provide that Tenant shall
pay any Operating Costs and Taxes in excess of 1994 actual Operating Costs and
Taxes.
3. Tenant accepts the Demised Premises for the Extended Term in the
condition as exists on the date of this First Amendment, and Landlord shall
have no obligation to repair, alter, or remodel the Demised Premises.
**See below**
4. Exhibit E ("Extension Option") to the Lease shall be deleted in its
entirety.
5. All the remaining terms and conditions of the Lease shall be
applicable to the Demised Premises.
6. The Lease and this First Amendment shall be governed by all respects
by the laws in the State of Texas.
** Regarding repair of common areas, facilities as well as structural pendages,
all responsibilities as indicated in the previous contract remain in force.
1
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7. All capitalized terms used herein, and not otherwise defined
herein, shall have the meanings ascribed to said terms in the Lease.
8. The Lease, as amended herein, is hereby ratified and confirmed
and shall continue in full force and effect.
IN WITNESS WHEREOF, the parties have executed this First Amendment
effective as of the date first set forth above.
LANDLORD:
NEW ENGLAND MUTUAL LIFE INSURANCE COMPANY
By: XXXXXX REAL ESTATE ADVISORS, INC.,
asset manager and agent
By: /s/ XXXXXX X. XXXXXXX
----------------------------
Name: Xxxxxx X. Xxxxxxx
----------------------------
Title: Managing Director
----------------------------
TENANT:
PRESS PASS, L.P.,
a Texas limited partnership
By: Press Pass, Inc.,
general partner
By: /s/ XXXXXX X. XXXXXXX
----------------------------
Xxxxxx X. Xxxxxxx, President
2
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Second Amendment to Lease
This Second Amendment to Lease made and entered into this 28th day of
November, 1995 by and between CleveTrust Realty Investors, a Massachusetts
trust, as "Lessor" and Press Pass., LP a Texas limited partnership, as "Lessee".
WITNESSETH
WHEREAS, Lessor leased certain premises in the 14800 Quorum, in the
city of Dallas, State of Texas, to Lessee pursuant to that certain Lease dated
January 7, 1993, and First Amendment of Lease dated March 16, 1994, hereinafter
referred to as the "Lease", the premises being described as suite 420,
consisting of approximately 2,500 sq. ft. and,
WHEREAS, Lessee wishes to extend its lease term for an additional
three years and Lessor is willing to accommodate Lessee in its request.
NOW THEREFORE, in consideration of these presents and the agreements
of each other, Lessor and Lessee agree that said Lease shall be and the same
is hereby amended as of the 15th day of January, 1996 as follows:
(1) The Basic Lease Information regarding tenant shall be ammended
to reflect Press Pass., a general partnership. The Basic Lease Information
regarding rentable square feet in Demised Premises shall be amended to read
4131 rentable square feet.
(2) Section 1, The Lease Term shall be amended to reflect the Lease
Term extended for an additional three years and 1/2 month making the expiration
date of the Lease Agreement January 31, 1999.
(3) Section 2, Basic rental outlined on the First Amendment Lease,
Basic rental, shall be amended to reflect the Basic Rental to be in the amount
of
for the period January 15, 1996--January 31, 1996, the sum of
$1,872.50
for the period February 1, 1996--January 31, 1997, the sum of
$3,745.00 per month
for the period February 1, 1997--January 31, 1998, the sum of
$3,833.00 per month
for the period February 1, 1998--January 31, 1999, the sum of
$3,920.00 per month
The total monthly basic rent for January, 1996 shall be $1,872.50--
The period of 1/1/96 -- 1/14/96 having been paid with the
December 95 payment.
(4) Tenant and Landlord agree that Landlord shall perform tenant finish
in connection with this Lease agreement, per the attached Exhibit A. Tenant is
responsible for relocation of telephone and telephone board in order that
Landlord may commence construction.
(5) Section 45. Miscellaneous, shall be amended to include f.
Notwithstanding anything to the contrary contained herein, Tenant acknowledges
that Landlord makes no warranties either expressed or implied in connection
with this Lease, including but not limited to, warranties of fitness for a
particular purpose, or suitability of the Demised Premises.
(6) Section 18 of the Lease titled "FIRE OR OTHER CASUALTY" shall be
amended by deleting the 20th-24th lines which read "except that Landlord shall
not be required to rebuild, repair or replace any part of the partitions,
fixtures and other improvements which may have been placed by Tenant or other
tenants within the building or the Demised" and replacing it with, "except
that Landlord shall not be required to repair or replace any of Tenant's
supplies, goods, personal property, furniture, fixtures or equipment which may
have been placed by Tenant or other tenants within the building or the Demised".
All other terms, covenants and conditions of the Lease remain in full
force and effect except as heretofore set forth.
IN WITNESS WHEREOF, Lessor and Lessee have executed this instrument by
proper persons thereunto duly authorized to do so on the day and year first
hereinabove written.
CleveTrust Realty Investors is a Massachusetts business trust which
was organized to operate as a real estate investment trust and is governed
by the terms of a Second Amended and Restated Declaration of Trust dated as
of February 21, 1992. No obligation of the Trust is personally binding upon,
nor shall resort be had to the private property of any other Trustees,
shareholders, officers, employees or agents of the Trust, but the Trust
property or a specific portion thereof only shall be bound.
LESSOR: CleveTrust Realty Investors
a Massachusetts business trust
By: Witnesses: /s/ XXXXX XXXXXX
------------------------- -------------------------
/s/ BRIEN X. XXXXXXXXXX /s/ XXXXXXX X'XXXXX
------------------------- -------------------------
Xxxxx X. Xxxxxxxxxx, V. President
LESSEE: Press Pass., a general partnership
By: /s/ XXXXX XXXXXXX Witnesses: /s/ XXXXX XXXXXX
------------------------- -------------------------
CFO /s/ XXXXX XXXXXXX
-------------------------
