EXHIBIT 6(i)
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") is entered as of the ______ day of
___________, 1997, between Residential Healthcare Properties, Inc., a Nevada
corporation, ("Landlord"), and Greenbriar Corporation, a Nevada corporation
("Tenant").
ARTICLE I
Leased Premises, Term, and Use
Section 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" hereto in the
building ("Building") located at 0000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxx
Xxxxxx, Xxxxx, herein called the "Leased Premises."
(b) The "Rentable Area" of the Leased Premises is hereby stipulated and
agreed for all purposes to be ________________ square feet, and the
Rentable Area for the entire Building is hereby stipulated and agreed for
all purposes to be ___________ square feet.
Section 1.02. Term. Subject to the terms, provisions and conditions
hereof, this Lease shall continue in force for a term ("Term") of Three Years
(36 calendar months), beginning on the _______ day of
__________________________, 1997 (hereinafter called the "Commencement
Date") and ending on the _________ day of ____________________, 2002.
Section 1.03 Use. Tenant (and its permitted assignees and subtenants,
if any) will occupy and use the Leased Premises solely for general business
office purposes of a lawful nature and for no other purpose.
ARTICLE II
Rental
Section 2.01. Annual Rental. Tenant shall pay annual rental ("Annual
Rental") as follows:
(a) Beginning on the first day of the Term of this Lease the Annual
Rental shall be $125,000.00;
(b) Commencing on the first anniversary of the Term, the Annual Rental
shall be $150,000.00; and
(c) Commencing on the second anniversary of the Term, the Annual Rental
shall be $175,000.000.
Section 2.03. Parking Charge. Tenant shall, at all times during the
Term, lease from Landlord parking rights for ________ cars in the covered
parking area, all at the monthly rate of $_________ per ________ car
entitled to park in the covered parking area ("Covered Parking Charge").
Tenant covenants and agrees to pay the Covered Parking Charge to Landlord
during the Term as rental hereunder.
Section 2.04. Payment of Rent. The term "Rent" as used herein shall
mean the Annual Rental, the Parking Charge and all other amounts provided for
in this Lease to be paid by Tenant, all of which shall constitute rental in
consideration for this Lease and the leasing of the Leased Premises. The
Rent shall be due and payable in advance in monthly installments on the first
day of each calendar month during the Term hereof, in legal tender of the
United States of America to Landlord at the address shown in Section 5.16 or
to such other person or at such other address as Landlord may from time to
time designate in writing. The Rent shall be paid without notice, demand,
abatement, deduction or offset except as otherwise expressly provided for in
Sections 5.01 and 5.02. If the Term commences or ends on other than the first
or last day of a calendar month, then the installment of Annual Rental and
the Covered Parking Charge for such partial month shall be appropriately
prorated. In no event shall Annual Rental or the monthly installments
thereof be less than the amounts specified in Section 2.01.
Section 2.05 Security Deposit. Landlord hereby acknowledges receipt
of $_________ representing the first month's rental paid in advance, to be
applied to the Rent for the first month of the Term when due, and an amount
of $_________________ representing Tenant's deposit ("Security Deposit") as
security for the full and faithful performance by Tenant of the terms,
conditions, and covenants of this Lease which are to be performed and kept by
Tenant. Landlord may apply any portion of the Security Deposit as may be
necessary to cure an Event of Default (hereinafter defined) by Tenant
hereunder, including (but not limited to) the failure of Tenant to pay Rent
or any other charges which accrue in favor of Landlord hereunder. In the
event Tenant fails to repair damages caused or occasioned by Tenant,
including damages caused by the removal of fixtures allowed to be removed
under Section 4.06, Landlord may apply any portion of the Security Deposit as
may be necessary to make such repairs. Any remaining balance of the Security
Deposit shall not be considered as an advance payment of Rent or a measure of
Landlord's damages in the event of default by Tenant. Landlord's deduction
of the amounts owed by Tenant to Landlord from the Security Deposit shall in
no event release Tenant from being in default under the terms of this Lease.
Tenant shall at all times maintain the Security Deposit in the full amount
set forth in this Section 2.05, and shall upon demand of Landlord deposit
such additional amounts as may be necessary to replace any portion of the
deposit expended by Landlord pursuant to this Section. The Security Deposit
shall not accrue interest and may be place in the general operating funds of
Landlord.
ARTICLE III
Landlord's Services
Section 3.01. Services to be Furnished by Landlord.
(a) Landlord shall use all reasonable efforts to furnish, subject to the
Building Rules and Regulations (hereinafter 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) Janitor service in and about the Building and the Leased
Premises five (5) days per week, and periodic window washing;
however, Tenant shall pay, as additional Rent upon presentation of a
statement therefor by Landlord, the additional costs attributable to
the cleaning of improvements within the Leased Premises other than
Building Standard (hereinafter defined) improvements;
(4) Electricity and proper facilities to furnish sufficient
electrical power during Normal Building Operating Hours for normal
office machines and other machines of low electrical consumption,
but not including electricity or air-conditioning required for
electronic data processing equipment other than desk-top or lap-top
personal computers, special lighting in excess of Building Standard,
or any other item of electrical equipment which singly consumes more
than 0.5 kilowatts per hour at rated capacity or requires a voltage
other than 120 volts single phase; and
(5) Replacement of fluorescent lamps in Building Standard light
fixtures installed by Landlord and incandescent bulb or fluorescent
lamp replacement in public toilet and restroom areas and stairwells.
(6) Such other services as Landlord and Tenant may agree upon form
time to time such as copy machines, facsimile machines, postage
meters, computer hardware and software, at rates and charges as the
parties may agree.
(b) Landlord shall furnish Tenant with keys to unlock the main door
entering the Leased Premises and appropriate access to the building
security system. Landlord shall furnish at the commencement of the Lease
Term an adequate number of keys for Tenant's employees designated by
Tenant has having rights to keyed access to the Leased Premises. Any
additional keys will be furnished at a charge by Landlord on an order
signed by Tenant or Tenant's authorized representative. 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 duplicates of such
keys, except those furnished by Landlord. Upon termination of this
Lease, Tenant shall surrender to Landlord all the keys for 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.
(c) "Normal Building Operating Hours" shall be from 8:30 a.m. to 5:30
p.m. Monday through Friday, and 8:00 a.m. to 1:00 P.M. Saturday,
exclusive of Sundays and "holidays." "Holidays" shall refer, without
limitation, to New Year's Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day, Christmas Day, and other holidays as may be designated
by Landlord. If the holiday occurs on Saturday or Sunday, the Friday
preceding or the Monday following may, at Landlord's discretion, be
observed as a holiday.
(d) Failure by Landlord to any extent to furnish services hereunder or
cause any cessation thereof 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 the same promptly, but Tenant shall have no claim for rebate of
Rent, damages, or eviction on account thereof.
(e) Tenant shall pay to Landlord, monthly as billed, as Additional Rent
hereunder, such charges as may be separately metered or as Landlord may
compute for (i) any utility services utilized by Tenant for computers,
data processing equipment or other similar electrical equipment; (ii)
extra lighting; (iii) air-conditioning, heating and other services in
excess of that stated in Sections 3.01(a)(1) and (5) hereof; or (iv)
other air-conditioning, heating and services not standard for the
Building or provided at times other than Normal Building Operating Hours.
Landlord may elect to estimate the charges specified to be paid by Tenant
under this Section 3.01 (e) and xxxx such charges to Tenant monthly in
advance, in which event Tenant shall pay such estimated charges and when
the actual amounts of such charges are determined by Landlord an
appropriate cash adjustment shall be made between Landlord and Tenant to
reflect any underpayment or overpayment of such charges because of any
difference between Landlord's estimate of, and the actual amount of such
charges. Tenant shall pay all costs associated with providing separate
utility meters to the Leased Premises. In the event separate utility
meters are provided to the Leased Premises, Landlord may elect to have
all charges for the utilities separately metered to the Leased Premises
billed directly to the Tenant.
Section 3.02. 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 or the Building, except such repairs as may be required to
the Building corridors and lobbies and structural members of the Building,
and such repairs as may be deemed necessary solely by Landlord for normal
maintenance operations for the Building. This Section 3.02 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).
ARTICLE IV
Tenant's Covenants
Section 4.01. Payments by Tenant. Tenant agrees to pay timely the Rent
and all rents and sums provided to be paid to Landlord hereunder at the times
and in the manner herein provided and at all times to occupy and conduct
business in the Leased Premises.
Section 4.02. Certain Taxes. Tenant shall pay all ad valorem taxes on
all improvements installed in the Leased Premises that are in excess of those
installed by Landlord from time to time as Building Standard.
Section 4.03. Repairs by Tenant. Tenant, at its cost, shall repair or
replace any damage to the Building, or any part thereof, caused by Tenant or
Tenant's agents, employees, invitees or visitors; provided if Tenant fails to
make such repairs or replacements promptly, Landlord may, at its option, make
such repairs or replacements and the cost thereof shall be payable by Tenant
on demand as a part of the Rent hereunder, and failure of Tenant to pay such
costs within ten (10) days shall constitute a failure to pay Rent when due
and an Event of Default by Tenant hereunder.
Section 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 to any portion of the Leased Premises,
and at the expiration or termination of this Lease shall deliver up to the
Leased Premises to Landlord in as good condition as at date of possession by
Tenant, ordinary wear and tear excepted.
Section 4.05. Assignment or Sublease.
(a) Tenant shall not assign this Lease or sublease the Leased Premises
or any part thereof or mortgage, pledge or hypothecate its leasehold
interest or grant any concession or license within the Leased Premises
(any such assignment, sublease, mortgage, pledge, hypothecation, or grant
of a concession or license being hereinafter referred to in this Section
4.05 as a "Transfer") without the prior express written permission of
Landlord, and any attempt to effect a Transfer without such permission of
Landlord shall be void and of no effect. In order for Tenant to make a
Transfer, Tenant must request in writing Landlord's permission at least
sixty (60) days in advance of the date on which Tenant desires to make a
Transfer, after which Landlord shall then have a period of thirty (30)
days following receipt of such notice within which to notify Tenant in
writing that Landlord elects (i) to terminate this Lease as to the space
so affected as of the date so specified by Tenant in which event Tenant
will be relieved of all further obligations hereunder as to such space;
(ii) to permit Tenant to assign or sublet such space, subject, however,
to prior written approval of the proposed assignee or Subtenant by
Landlord and the Rent payable hereunder shall be adjusted to the then
prevailing market rent for similar building and space in the North Dallas
office market including proration charges for common area maintenance,
taxes and insurance; but in no event less than the Annual Rent provided
in Article II hereof; or (iii) to refuse consent to Tenant's requested
transfer and to continue this Lease in full force and effect as to
the entire Leased Premises. If Landlord shall fail to notify Tenant in
writing of such election within said thirty (30) day period, Landlord
shall be deemed to have elected option (iii) above. The Prohibition
against a Transfer contained herein shall be construed to include a
prohibition against any Transfer by operation of law.
(b) Notwithstanding that the prior express written permission of
Landlord to a Transfer may have been obtained under the provisions of
Section 4.05(a), the following shall apply:
(1) In the event of an assignment or sublease, Tenant shall (i)
cause the assignee or Subtenant to assume expressly in writing and
to agree to perform all of the covenants, duties and obligations of
Tenant hereunder, and such assignee or Subtenant shall be jointly
and severally liable therefor along with Tenant; (ii) cause such
assignee or Subtenant to grant Landlord an express first and prior
contract lien and security interest in the same manner as the lien
granted by Tenant to Landlord under Section 5.03 hereof; (iii)
subordinate to Landlord's statutory lien and the aforesaid contract
lien and security interest any liens or other rights which Tenant
may claim with respect to any fixtures, equipment, goods,
merchandise or other property owned by or leased to the proposed
assignee or Subtenant or other party intending to occupy the Leased
Premises; and (iv) agree with Landlord that in the event that the
rent or other consideration due and payable by a Subtenant or
assignee under any such permitted sublease or assignment exceeds the
Rent for the portion of the Leased Premises so transferred, then
Tenant shall pay Landlord as additional rental hereunder all such
excess rental and other consideration immediately upon receipt
thereof by Tenant from such transferee;
(2) A signed counterpart of all instruments, relative to a Transfer
(executed by all parties to such transaction with the exception of
Landlord) shall be submitted by Tenant to Landlord prior to or
contemporaneously with the request for Landlord's written consent
thereto (it being understood that no such instrument shall be
effective without the written consent of Landlord);
(3) No usage of the Leased Premises different from the usage herein
provided to be made by Tenant shall be permitted, and all of the
terms and provisions of this Lease shall continue to apply after
a Transfer; and
(4) In any case where Landlord consents to a Transfer, Tenant will
nevertheless remain directly and primarily liable for the
performance of all the covenants, duties and obligations of Tenant
hereunder (including, without limitation, the obligation to pay all
Rent herein provided to be paid), and Landlord shall be permitted to
enforce the provisions of this Lease against the undersigned Tenant
or any transferee, or both, without demand upon or proceeding in any
way against any other persons.
(c) If Tenant is a corporation then any transfer of this Lease by
merger, consolidation or dissolution or any change in ownership or power
to vote a majority of the voting stock in Tenant outstanding at the time
of execution of this Lease shall constitute a Transfer for the purposes
of this Lease. For purposes of this Section 4.05(c), the term "voting
stock" shall refer to shares of stock regularly entitled to vote for the
election of directors of the corporation involved.
(d) If Tenant is a general partnership having one or more corporations
as partners or if Tenant is a limited partnership having one or more
corporations as general partners, the provisions of Section 4.06(c) shall
apply to each of such corporations as if such corporations alone had been
the Tenant hereunder. If Tenant is a general or limited partnership,
joint venture, or other form of association, the transfer of a majority
of the ownership interests therein shall constitute a Transfer for the
purposes of this Lease.
(e) The consent by Landlord to a particular Transfer shall not be deemed
a consent to any other subsequent Transfer. If this Lease, the Leased
Premises or the Tenant's leasehold interest therein, or if any portion of
the foregoing is transferred, or if the Leased Premises are occupied in
whole or in part by anyone other than Tenant without the prior consent of
Landlord as provided herein, Landlord may nevertheless collect rent from
the transferee or other occupant 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 the
provisions hereof or a release of Tenant from the further performance by
Tenant of its covenants, duties and obligations hereunder.
Section 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. Tenant may
remove its trade fixtures, office supplies and movable office furniture and
equipment not attached to the Building provided (i) such removal is made
prior to the termination or expiration of the Term; (ii) Tenant is not then
in default in the timely performance of any obligation or covenant under this
Lease; and (iii) Tenant promptly repairs all damage caused by such removal.
All other property at the Leased Premises and any alteration or addition to
the Leased Premises and any other articles attached or affixed to the floor,
wall, or ceiling of the Leased Premises is a part of the property of Landlord
and shall be surrendered with the Leased Premises as part thereof at the
termination or expiration of this Lease, without payment or compensation
therefor. If, however, Landlord so requests in writing, Tenant, prior to
termination or expiration of this Lease, will remove any and all alterations,
additions, fixtures, equipment and property placed or installed by Tenant or
installed by Landlord at Tenant's expense in the Leased Premises and will
repair any damage caused by such removal.
Section 4.07. Compliance with Laws and Usage; Liens. Tenant, at its
cost, shall comply with all federal, state, municipal and other laws and
ordinances applicable to the Leased Premises and the business conducted
therein by Tenant, and with the Building Rules and Regulations; will not
engage in any activity which would cause Landlord's fire and extended
coverage insurance to be canceled or the rate therefor to be increased (or,
at Landlord's option, will pay any such increase); and will not commit any
act which is a nuisance or annoyance to Landlord or to other tenants in the
Building or which might, in the exclusive judgment of Landlord, appreciably
damage Landlord's goodwill or reputation, or tend to injure or depreciate the
value of the 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 promptly
shall discharge the same at its sole cost.
Section 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 other purpose deemed reasonable by Landlord; and Tenant shall not
be entitled to any abatement or reduction of Rent by reason thereof.
Section 4.09. Landlord's Mortgagee. Tenant agrees with Landlord and
with the mortgagee of any mortgage or the beneficiary of any deed of trust
now or hereafter constituting a lien on the Building or the Leased Premises
("Landlord's Mortgagee") that any 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 and upon the giving of
such notice 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
the request of Landlord's Mortgagee, Tenant shall execute a recordable
instrument establishing this Lease as superior to such lien; or 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 certificate or instrument of subordination need
be required by any mortgagee. In confirmation of such subordination, however,
Tenant shall execute promptly any reasonable certificate or instrument that
Landlord may request. Tenant hereby constitutes Landlord as Tenant's
attorney-in-fact to execute such certificate or instrument for and on behalf
of Tenant. In the event of the enforcement by Landlord's Mortgagee of the
remedies provided for by law or by such mortgage or deed of trust, Tenant
will, upon request of any person or party succeeding to the interest of
Landlord as a result of such enforcement, automatically become the Tenant of
such successor in interest without change in terms or other provisions of
such Lease provided, however, that such successor in interest shall not be
(i) bound by any payment of Rent for more than one month in advance except
payments in the nature of security for the performance by Tenant of its
obligations under this Lease; (ii) subject to any offset, defense or damages
arising out of a default or any obligations of any preceding Landlord; or
(iii) bound by any amendment or modification of this Lease made without the
written consent of such trustee or such beneficiary or such successor in
interest. Upon request by such successor in interest, Tenant shall execute
and deliver reasonable instruments confirming the attornment provided for
herein.
Section 4.10. Estoppel Certificate. At Landlord's request from time to
time, Tenant will execute promptly, without further consideration, an
estoppel certificate addressed to Landlord's Mortgagee or to such party as
Landlord may designate certifying to such notice provisions and other matters
as Landlord's Mortgagee or as the other party designated by Landlord may
reasonably request. At Landlord's request from time to time, Tenant will
execute promptly, without further consideration, a certificate stating the
commencement and expiration dates of the Term, the rental then payable
hereunder, that there are not defaults on the part of 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, addressed to such party as Landlord may
designate. Tenant hereby irrevocably appoints Landlord Tenant's true and
lawful attorney-in-fact to deliver such certificate on behalf of Tenant
should Tenant
refuse or fail to deliver any estoppel certificate when required to do so by
Landlord and such certificate shall be binding on Tenant as if and to the
same extent as if executed by Tenant.
ARTICLE V
Mutual Covenants
Section 5.01. Condemnation, 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 Building or Leased Premises, in the opinion of
Landlord, not reasonably suitable for occupancy, this Lease shall, at the
option of either party, forthwith cease and terminate, and all proceeds from
any taking or condemnation of the Building and the Leased Premises shall
belong to and be paid to Landlord. 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 Annual Rental hereunder shall
be abated to the extent the Leased Premises are rendered untenantable during
the period of repair and thereafter be adjusted on an equitable basis
considering the areas of the Leased Premises taken and remaining.
Section 5.02. Fire or Other Casualty; Certain Repairs.
(a) In the event of a fire or other casualty in the Leased Premises,
Tenant immediately shall 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 in the
opinion of Landlord, the Annual Rental provided for herein shall xxxxx as
to the portion of the Leased Premises rendered untenantable until such
time as the Leased Premises are tenantable as determined by Landlord and
Landlord agrees to commence and prosecute such repair work promptly and
with reasonable diligence. If such destruction results in the Lease
Premises being untenantable in substantial part for a period reasonably
estimated by Landlord to be six (6) months or longer after Landlord's
insurance settlement, or in the event of total or substantial damage or
destruction of the Building where 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 upon notice thereof to Tenant.
Landlord shall give Tenant written notice of its decisions, estimates or
elections under this Section 5.02 within sixty (60) days after such
damage or destruction.
(b) Should Landlord elect to effect any repairs under Sections 5.01 or
5.02(a), Landlord shall be obligated only to restore or rebuild the
Leased Premises to a Building Standard condition, and then only to the
extent that insurance proceeds are actually available to Landlord
therefore. In the event the Annual Rental or any portion of the Annual
Rental is abated under Sections 5.01 or 5.02(a), the expiration date of
the Term specified in Section 1.02 shall be extended for the period of
such abatement. As used herein, "Building Standard" shall refer to those
services, those items of finish material, and the level of work generally
furnished by Landlord through the Building.
5.03. Security Interest. In consideration for the mutual benefits
arising under this Lease, and as security for Tenant's performance of all its
obligations under this Lease, Tenant hereby grants to Landlord a lien and
security interest in and on all property of Tenant now or hereafter placed in
or upon the Leased Premises, and such property shall be and remain subject to
such lien and security interest of Landlord for payment of all Rent and other
sums agreed to be paid by Tenant herein. The provisions of this Section 5.03
shall constitute a security agreement under the Texas Uniform Commercial Code
so that Landlord shall have and may enforce a security interest on all
property of
Tenant now or hereafter placed in or on the Leased Premises, including but
not limited to all fixtures, machinery, equipment, furnishings and other
articles of personal property now or hereafter placed in or upon the Leased
Premises by Tenant. Landlord may at its election at any time file a copy of
this Lease as a financing statement. Landlord, as secured party, shall be
entitled to all of the rights and remedies afforded to a secured party under
the Texas Uniform Commercial Code, which rights and remedies shall be in
addition to and cumulative to the Landlord's liens and rights provided by law
or by the other terms and provisions of this Lease. Promptly upon request,
and without further consideration, Tenant agrees to execute as debtor such
additional financing statement or statements as Landlord may now or hereafter
reasonably request in order that Landlord's security interests may be
protected pursuant to the Texas Uniform Commercial Code.
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, except that the daily Rent shall
be twice the per day Rent in effect immediately prior to such expiration or
termination, 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 accrue against
thereafter Landlord hereunder.
5.06. Recourse Limitation. 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 provision 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 including (without limitation), driveways, entrances
and exits thereto, and other facilities furnished by Landlord, including all
parking areas, truck way or ways, loading areas, pedestrian walk-ways, 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. 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 "B" hereto and
are of equal dignity herewith.
5.08. Default by Tenant.
(a) Each of the following occurrences relative to Tenant shall
constitute an "Event of Default":
(1) Failure or refusal of Tenant to make the timely payment of any
Rent payable under this Lease when and as the same shall become due
and payable;
(2) The abandonment or vacating of the Leased Premises or any
significant portion thereof;
(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 obligations hereunder; or petition or answer
seeking relief under any provisions of the Bankruptcy act; or as
assignment for the benefit of creditors or composition; or a
petition or 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;
(4) Failure by Tenant in the performance of or compliance with any
of the agreements, terms, covenants or conditions provided in this
Lease, other than those referred to in (1), (2) or (3) above for a
period of ten (10) days after notice from Landlord to Tenant
specifying the items in default; or
(5) The occurrence of any other event herein provided to be an
Event of Default.
(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 surrender
immediately 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 with or without
having terminated the Lease; and
(3) Apply all or any portion of the Security Deposit to cure such
Event of Default; and
(4) 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,
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 hereunder to the date of such termination, the amounts stated in
Section 5.08(f) hereof, plus, as liquidated damages, an amount equal to
the then present value of the Rent and all other indebtedness as would
otherwise have been required to be paid by Tenant to Landlord during the
period following the termination of the term measured from the date of
such termination to the date of expiration stated in Section 1.02, less
the then present fair market rental value of the Leased Premises for such
period; because of the difficulty of ascertaining the fair market rental
value of the Leased Premises and the costs and time associated with
reletting the Leased Premises, the Landlord and Tenant stipulate that
such fair market rental value shall in no event be deemed to exceed
seventy-five percent (75%) of the then present value of the Rent reserved
for such period.
(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 by Landlord through
reletting the Leased Premises during said period (after deducting
expenses incurred by Landlord as provided below); re-entry 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.
(f) In case of an Event of Default, to the extent the same were not paid
or deducted, as appropriate, under Section 5.08(d) or (e), Tenant shall
also pay to Landlord: (i) broker's fees incurred by Landlord in
connection with reletting the whole or any part of the Leased Premises;
(ii) the cost of removing and storing Tenant's or any other occupant's
property; (iii) and the cost of repairing, altering, remodeling or
otherwise putting the Leased Premises into condition acceptable to a new
tenant or tenants; and (iv) all reasonable expenses incurred by Landlord
in enforcing Landlord's remedies, including reasonable attorneys' fees
and court costs.
(g) Upon termination or repossession of the Leased Premises for an Event
of Default, Landlord shall not be obligated to relet or attempt to relet
the Leased Premises, or any portion thereof, or to collect rental after
reletting, but Landlord shall have the option to relet or attempt to relet.
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, plus interest thereon at the highest rate of interest permitted
by law.
5.09. Right to Relocate. Notwithstanding anything herein to the
contrary, Landlord shall in all cases retain the right and power to relocate
Tenant within the building in space which is comparable in size and location
and suited to Tenant's use, such right and power to be exercised reasonably
and such relocation to be made at Landlord's sole cost and expense. Landlord
shall not be liable or responsible for any claims, damages, or liabilities in
connection with or occasioned by such relocation. Landlord's reasonable
exercise of such right and power shall include, but, shall in no way be
limited to, a relocation to consolidate the rentable area occupied in order
to provide
Landlord services more efficiently, or a relocation to provide
contiguous vacant space for a prospective tenant.
5.10. 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.
5.11. 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
independent unconditional obligations to be performed at all times provided
for hereunder, 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.
5.12. Time of Essence. In all instances where any act is required at a
particular indicated time or within a period, it is understood and stipulated
that time is of the essence.
5.13. 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 hereunder shall be deemed
cumulative and no remedy of Landlord, whether exercised by Landlord or not,
shall be deemed to be in exclusion of any other.
5.14. Insurance, Subrogation, Liability, Indemnity, and Waiver.
(a) Tenant shall maintain at its sole expense fire and extended coverage
insurance with vandalism and malicious mischief endorsements and a
sprinkler leakage endorsement (where applicable), on all of its personal
property, including removable trade fixtures, located in the Leased
Premises and on non-Building Standard leasehold improvements and all
additions and improvements made by Tenant.
(b) Tenant, at its sole expense, shall maintain in effect at all times
comprehensive general liability insurance, including contractual
liability coverage, naming Landlord as an additional insured, issued by
and binding upon some solvent insurance company authorized to do business
in Texas and satisfactory to Landlord, with bodily injury limits
of not less than $1,000,000 for each occurrence and $5,000,000 in the
aggregate and property damage liability limits of not less than $500,000
for each occurrence and $1,000,000 in the aggregate. Tenant shall
provide to Landlord (i) copies of such insurance policies prior to the
Commencement Date of the Term, (ii) certificate of renewal at least
thirty (30) days prior to the expiration date of any such policies, and
(iii) copies of new policies at least thirty (30) days prior to
terminating, or changing insurance companies for, any such policies.
(c) Anything herein to the contrary notwithstanding 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 partners, directors, officers,
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 except gross negligence or willful misconduct (but including
negligence of the parties hereto or their partners, directors, officers,
employees, or agents) that could have been insured against under the
terms of (i) any standard fire and extended coverage insurance policies
required under the terms of this Lease, or (ii) any other loss covered by
insurance required to be maintained under the terms of this Lease;
provided, however, that this waiver shall be ineffective against any
insurer of Landlord or Tenant to the extent that such waiver (i) is
prohibited by the laws and insurance regulations of the State of Texas or
(ii) would invalidate any insurance coverage of Landlord or Tenant. The
waiver set forth in this Section 5.14(c) shall not apply to any
deductibles on policies carried by Landlord nor to any coinsurance
penalty which Landlord might sustain.
(d) Except for any of the claims, rights of recovery and causes of
action that Landlord has released and waived pursuant to Section 5.14
(c), Tenant hereby releases, indemnifies, defends and holds harmless
Landlord and Landlord's partners, agents, directors, officers, employees,
invitees and contractors, from all claims, losses, costs, damages or
expenses (including, but not limited to, attorneys' fees) resulting or
arising from any and all injuries or death of any person or damage to any
property occurring during the Term caused or alleged to have been caused
by any act, omission, or neglect of Tenant or Tenant's directors,
officers, employees, agents, invitees or guests, or any parties
contracting with Tenant relating to the Leased Premises.
(e) Tenant and Landlord agree that each shall not be responsible or
liable to the other, or to their agents, customers 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 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 either party, or for any inconvenience
or loss to either party in connection with any of the repair,
maintenance, damage, destruction, restoration or replacement referred to
in this Lease.
5.15. 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 Addison, Dallas County, Texas.
5.16. 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 0000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxx 00000 or if for Tenant, to
the Premises. Such addresses may be changed from time to time by either party
by giving notice as provided above. Notice shall be deemed given when
delivered (if delivered by hand) or when postmarked (if sent by mail).
5.17. 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. 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 provision to persons or circumstances other than those as
to which it is held invalid or unenforceable shall not be affected thereby.
5.18. Right of Reentry. Upon the expiration or termination of the Term
for whatever cause, Landlord shall have the right to reenter immediately and
reassume possession of the Leased Premises and remove Tenant's property
therefrom, and Tenant expressly acknowledges such right.
5.19. 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," "hereby," "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.
5.20. Delinquent Payments; Handling Charge. Any payments required of
Tenant hereunder, whether as Rent or otherwise, shall bear interest from the
time due until paid at the maximum rate of interest permitted by law.
Furthermore, should Tenant fail to pay timely any installment of Rent
hereunder, Landlord shall have the option to charge Tenant, as additional
Rent hereunder, a fee equal to Five Hundred Dollars ($500.00) 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. 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 ad
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, through, or under Landlord, but not otherwise, subject only
to the provisions of this Lease and all applicable governmental laws, rules
and regulations.
5.22. Signs. No signs, symbols or identifying marks shall be placed in
or upon the Building, in the halls, elevators, staircases, entrances, or
exterior of the Building, or upon the doors or walls of the Leased Premises
without prior written approval of Landlord. Landlord agrees to provide and
install, at Tenant's cost, all letters or numerals on doors in the Leased
Premises. All such letters and numerals shall be in the Building Standard
graphics, and no others shall be used or permitted on the Leased Premises
without written permission from Landlord
ARTICLE VI
RENEWAL OPTION
Subject to the conditions hereinafter set forth and provided this Lease is
then in effect, Tenant shall have the right to renew the term of this Lease
for one (1) renewal term of five (5) years (the "Renewal Term"), by
delivering written notice (the "Renewal Notice") to Landlord of its exercise
of such right at least one hundred eighty (180) days before the end of the
Term. Subject to the terms of this Lease set forth below, the Renewal Term
shall begin upon the expiration of the Term. All of the terms, provisions and
covenants of this Lease shall apply to each Renewal Term except that Rent for
the Renewal Term shall be the then prevailing market rent for similar
buildings and space in the north Dallas office market, including prorata
charges for common area maintenance taxes and insurance, but in no event less
than the Annual Rent payable during the final year of the Term. Tenant shall
have no right to exercise any option under this Section if any Event of
Default exists at the time of electing a renewal option or at the time the
Renewal Term would commence. If Tenant fails to give timely notice of
Tenant's intention to renew this Lease, the Term of this Lease shall expire
on the scheduled expiration date, and Tenant shall have no further option to
renew this Lease. If Tenant does not exercise any such option in a timely
manner, then Landlord shall have the right during the remainder of the Term
of this Lease to advertise the availability of the Premises for sale or
lease. In this Lease the phrases "term of this Lease," "term hereof," "Lease
Term," and "Term" mean the Original Term and any Renewal Term that may
become effective pursuant to this Section.
EXECUTED in multiple counterparts, each of which shall have the force and
effect of an original on the date first above written.
"LANDLORD"
RESIDENTIAL HEALTHCARE PROPERTIES, INC.
By:_____________________________________________
Name:___________________________________________
Title:__________________________________________
Address 0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
"TENANT"
GREENBRIAR CORPORATION
By:_____________________________________________
Name:___________________________________________
Title:__________________________________________