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EXHIBIT 10.14
OFFICE LEASE AGREEMENT
OFFICE ALPHA-DALLAS, TEXAS
THIS AGREEMENT OF LEASE made at Dallas County, this 26th day of August
1996, by and between CLEVE TRUST REALTY INVESTORS, a Massachusetts business
trust, (hereafter the "LESSOR") and EDIFY CORPORATION (hereafter the "LESSEE").
AGREEMENT:
ARTICLE 1 - PREMISES AND TERMS
In consideration of the rents, covenants and agreement herein contained, the
LESSOR hereby lets and leases unto the LESSEE, Suite 310, containing
approximately 4,233 square feet of rentable area, hereinafter referred to as
PREMISES being more particularly described herein by the attached Exhibit "A",
in the building known as OFFICE ALPHA, hereinafter referred to as BUILDING,
located at 13140 Coit Road, in the City of Dallas, for a term of four (4) years
and zero (0) months, beginning on the first day of October, 1996 and ending on
the last day of September, 2000, unless sooner terminated as hereinafter
provided.
ARTICLE 2 - ANNUAL BASE RENT
Section 2.1 The LESSEE covenants and agrees to pay to the LESSOR as Annual Base
Rent for said PREMISES, without demand or notice, the sum of SEE ADDENDUM
Dollars ($ SEE ADDENDUM) per year throughout the term of this LEASE in equal
monthly installments of SEE ADDENDUM Dollars ($ SEE ADDENDUM), without deduction
or set-off, payable in legal tender of the United States of America in advance
on the first day of each and every calendar month during the said term, at 2001
Crocker Road, Suite 400, Westlake, Ohio, 44145, or such other place as the
LESSOR may designate in writing. The amount of such Annual Base Rent shall be
subject to adjustment from time to time in accordance with ARTICLE 5
hereinafter. LESSEE agrees to pay a "late charge" equal to five percent (5%) of
the monthly rental installment as herein provided when any installment of rental
is paid more than ten (10) days after the due date thereof. It is hereby
understood that this charge is for extra expenses incurred by the LESSOR and
shall not be considered interest.
ARTICLE 3 - SECURITY DEPOSIT
The LESSEE agrees to deposit with LESSOR upon the execution of this LEASE the
sum Four Thousand Three Hundred Seventy Four and no/100 Dollars ($4,374.00) to
be held without interest to secure the faithful performance of all the ARTICLES
and Sections of this LEASE, and if the same has been faithfully performed, said
deposit shall be refunded at the expiration of this LEASE, otherwise such
deposit shall be retained by the LESSOR and applied against all damages
suffered by LESSOR, and the balance, if any, shall be returned to LESSEE.
ARTICLE 4 - USE
The PREMISES are to be occupied and used only for the following purpose:
general office, and for no other purpose. LESSEE shall not occupy or use the
PREMISES for any unlawful purpose or any purpose which would violate the
BUILDING'S Certificate of Occupancy, violate any provision of this LEASE, or
impair the appearance, character, or reputation of the BUILDING, or BUILDING's
services. LESSEE shall not use any portion of the PREMISES for preparation or
serving of food or beverage. Further, LESSEE shall fully comply with the terms
and conditions of any permit or license required of the LESSEE by law or
ordinance.
ARTICLE 5 - RENTAL ADJUSTMENT
LESSEE shall pay, as monthly rent hereunder, in addition to the Annual Base
Rent provided in ARTICLE 2 hereof, the sums provided in the "rent escalation
rider" attached hereto as Exhibit "B" and incorporated herein by this
reference. LESSEE shall be advised of any change, from time to time, in rent
escalation payments required hereunder by written notice from LESSOR, which
shall include information in such detail as LESSOR may reasonably determine to
be necessary in support of such change. LESSEE shall have 30 days after the
receipt of any such notice to protest in writing the change indicated therein;
but notwithstanding any such protest, all rent escalation payments falling due
after service of such notice shall be made in accordance with such notice until
the protest has been resolved, whereupon any necessary adjustment shall be made
between LESSOR and LESSEE.
ARTICLE 6 - CONSTRUCTION OF PREMISES
Section 6.1 - LESSEE'S FLOOR PLAN. The LESSOR agrees that the PREMISES shall be
constructed substantially in accordance with the LESSEE's Floor Plan, as noted
within Exhibit "A".
Section 6.2 - WORK LETTER. The LESSOR agrees that the materials used in the
construction of the PREMISES shall be substantially in accordance with the Work
Letter set forth in Exhibit "C", attached hereto and made a part of this LEASE.
Should the LESSEE request additional work involving labor and/or materials or
other changes in variance with the Work Letter for the PREMISES, they shall be
set forth in Exhibit "D", entitled Special Specifications, attached hereto and
made a part of this LEASE. The LESSOR shall prepare an estimate of the cost of
the Special Specifications and the LESSEE shall give written approval within
five (5) days of receipt thereof. The LESSOR shall bill LESSEE for all such
work, and the LESSEE shall pay LESSOR fifty percent (50%) of the cost of the
Special Specifications at the time of commencement of work, and the balance the
time of completion of the work, upon receipt of a statement therefore.
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Section 6.3 - DELAYS. Any delay in the construction of PREMISES resulting from
LESSEE's acts or omissions, which result in an increase in the costs of
performing such work, shall be charged to and paid by the LESSEE.
ARTICLE 7 - POSSESSION
Section 7.1 - DELAY IN POSSESSION. If LESSOR shall be unable to deliver
possession of said PREMISES on the date of the commencement of the term hereby
created because of the holding over of any tenant, or tenants, or for any other
cause beyond LESSOR's reasonable control, then the rent reserved shall not
commence until the date possession of said PREMISES is available to LESSEE, and
LESSEE agrees to accept such allowance and abatement of rent as liquidated
damages, in full satisfaction for the failure of LESSOR so to deliver
possession on said date of commencement, and to the exclusion of all claims and
rights which LESSEE might otherwise have by reason of delivery of possession
not being made on said date; and no failure so to deliver possession on said
date shall in any event extend, or be deemed to extend, the term of this LEASE.
Unfinished extra work, if any, undertaken by LESSOR for LESSEE shall not be
considered in determining the date when possession is available to LESSEE.
Section 7.2 - SUBSTANTIAL COMPLETION. If LESSOR is unable to give possession of
the PREMISES to LESSEE on the date for the commencement of the term hereof by
reason of the fact that LESSOR has not substantially completed any space
preparation work in said PREMISES pursuant to LESSOR's "Work Letter" signed on
behalf of LESSOR AND LESSEE (which said "Work Letter" is made a part hereof by
reference), and if the delay in completion of such work has not been caused by
LESSEE's failure to submit its plans and specifications to LESSOR on or before
the time called for in said Work Letter, or caused by other act or failure to
act by LESSEE, then the term of this LEASE shall commence on the date of
certification by LESSOR's AGENT that such work has been substantially
completed. If such date shall be other than the first day of a calendar month,
the rent for such month shall be prorated on a per diem basis. No failure to
deliver possession on the scheduled date for the commencement of the term shall
extend, or be deemed to extend the term of this LEASE. Notwithstanding anything
contained herein to the contrary, Lessor shall use all reasonable good faith
efforts to substantially complete the space preparation work within sixty (60)
days from the commencement of such work. In the event the space preparation
work is not substantially completed, save and except for "punchlist" items,
within the sixty (60) day period, Lessee may elect to terminate this Lease and
Lessor shall thereafter return to Lessee any sums paid in advance. If this
Lease is rescinded and terminated, then neither Lessor or Lessee shall have any
claim against the other.
Section 7.3 - ACCESS PRIOR TO COMMENCEMENT DATE. In the event the LESSEE shall
occupy the PREMISES or portion thereof, with the LESSOR's written consent,
prior to the commencement of this LEASE term, all of the ARTICLES and Sections
of this LEASE shall be in full force and effect as soon as the LESSEE occupies
the PREMISES except the term shall not commence until the date provided in
ARTICLE 1, and the monthly rental shall be due and payable by LESSEE on the
earlier of the commencement date of this LEASE or the first date of occupancy
by LESSEE.
Section 7.4 - ACCEPTANCE. The taking of possession of the PREMISES by the
LESSEE shall be conclusive evidence of acceptance thereof.
ARTICLE 8 - BUILDING SERVICES
Section 8.1. Provided LESSEE is not in default under any of the covenants and
agreements of this LEASE, LESSOR shall furnish LESSEE the following services:
a) cleaning, janitor and window washing services standard for the BUILDING
(LESSEE shall not engage or provide cleaning, janitor, window washing or
maintenance services without LESSOR's prior written consent, and if consent
is given, such services shall always be subject to supervision by LESSOR,
and at LESSEE's sole responsibility and expense);
b) heat and air conditioning during business hours as defined in ARTICLE
8.1(g). Should the LESSEE require special heating or air conditioning
equipment for restrooms, conference rooms, computer rooms or other areas
where the heat release is greater than in normal office space, the
additional costs shall be charged to, and paid by, the LESSEE.
c) water in reasonable amounts for drinking, lavatory and toilet purposes
only;
d) passenger and freight elevator service, during business hours; freight
elevator service at other times shall be optional with LESSOR and when so
provided shall never be deemed a continuing obligation of LESSOR;
e) electricity for normal business usage. All additional costs including but
not limited to heating and/or air conditioning, resulting from LESSEE's
installation of computers or like equipment, shall be paid by LESSEE.
LESSEE shall not install any equipment which uses a substantial amount of
electricity without the prior express written consent of LESSOR. LESSEE
shall ascertain from LESSOR the maximum amount of electrical current which
can be safely used in the PREMISES. LESSOR's consent to the installation of
electrical current which can be safely used in the PREMISES. LESSOR's
consent to the installation of electrical equipment shall not relieve
LESSEE from the obligation not to use more electricity than the safe
capacity.
f) If LESSEE shall request air conditioning service at other than during
business hours, LESSOR shall use its best efforts to supply such special
service provided that:
(i) LESSEE's request therefor shall be received by LESSOR not later
than 2:00 p.m. of the day on which any service is requested after
hours, or not later than 4:00 p.m. of the day preceding the day on
which any service is requested before hours; and
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(ii) LESSEE shall pay to LESSOR as additional rent within ten (10)
days after rendering of a statement therefor the cost of such service.
g) the term "business hours" as used in this Section shall mean Monday to
Friday, inclusive from 8:00 a.m. to 6:00 p.m. but excluding all days
observed by the Federal or State governments as legal holidays.
LESSOR and LESSEE agree that:
(i) LESSEE at all times shall cooperate fully with LESSOR with
respect to, and shall observe all regulations which LESSOR may from
time to time establish for, the proper functioning, protection and
control of LESSOR'S air conditioning and heating equipment;
(ii) LESSOR, through LESSOR's agents and employees, at all reasonable
times shall have the right to enter said PREMISES and to have free
access to said equipment and components thereof located on said
PREMISES for the purpose of the repair, maintenance and preservation
of the same;
(iii) LESSEE will not damage or abuse said equipment nor permit the
same to be done; and
(iv) neither LESSEE nor LESSEE's agents, employees or invitees shall
tamper with, or otherwise in any manner adversely affect, the
mechanical or electrical components of said equipment, and any damage
to the same caused by the willful or negligent act or acts of LESSEE
or LESSEE's agents, employees or invitees shall be paid for by LESSEE
promptly upon receipt of a statement of the amount thereof.
Section 8.2. LESSOR while not warranting that any of the BUILDING services
stipulated in this ARTICLE will be free from interruptions or suspensions
caused by repairs, renewals, improvements, alterations, strikes, lockouts,
accidents, inability of LESSOR to procure such service, or to obtain fuel or
supplies, or for other cause or causes beyond LESSOR's reasonable control, will
nevertheless diligently attempt to make such repairs or renewals to BUILDING
distribution lines and facilities as may be required to restore any such
service so interrupted or suspended. An interruption or suspension of, or
fluctuation in, any BUILDING service (resulting from any of said cause or
causes) shall never be deemed an eviction or disturbance of LESSEE's use and
possession of said PREMISES, or any part thereof, nor render LESSOR liable to
LESSEE for damages, nor relieve LESSEE from performance of LESSEE's covenants
and agreements hereunder. LESSOR shall also attempt to comply from time to time
with all government regulations, proclamations, orders or requests in an effort
to conserve energy.
ARTICLE 9 - ALTERATIONS
LESSEE shall not make any alterations, additions, improvements or other changes
in or to said PREMISES or the BUILDING, or attach, affix or build therein any
improvement or installation without LESSOR's prior written consent in each and
every instance. Before any such work is done or any materials therefore are
delivered on said PREMISES or into the BUILDING, LESSEE shall provide LESSOR
with plans, specifications, names of contractors, copies of contracts and
necessary permits; shall indemnify and hold harmless LESSOR against liens,
costs, damages and expenses of all kinds; and shall submit to LESSOR's
reasonable supervision of such work. All additions, installations, alterations,
fixtures and improvements (temporary or permanent) in and upon said PREMISES,
whether installed by LESSEE or LESSOR shall become LESSOR's property, and shall
remain upon, and be surrendered with, said PREMISES without disturbance or
injury upon the termination of this LEASE by lapse of time or otherwise, all
without payment or credit to LESSEE. LESSEE shall have the right to place in
said PREMISES, at such locations therein as LESSEE from time to time may
determine, LESSEE's furniture, trade fixtures and standard business office
machines and equipment, and such personal property shall be and remain the
property of LESSEE, and, provided LESSEE is not in default hereunder, may be
removed by LESSEE at any time during the LEASE term, upon its expiration, or
upon its earlier termination in any manner, LESSEE, however, agreeing to repair
at LESSEE's expense any damage to said PREMISES or the BUILDING caused by such
removal.
ARTICLE 10 - REPAIR OF PREMISES
Section 10.1. LESSEE shall take good care of said PREMISES and the fixtures and
improvements therein, and will use said PREMISES during the term of the LEASE
for the purpose above specified and no other; will not illegally sell or store
therein any spirituous, malt or various liquors, or any narcotic drugs; will
not exhibit, sell or offer for sale on said PREMISES; will not make or permit
any use of said PREMISES which, directly or indirectly, is forbidden by
ordinance, statute or government regulation, or by any restrictions of record,
or which may increase the premium cost of, or invalidate, any policy of
insurance carried on the BUILDING or covering its operation, and will comply
with the Rules and Regulations appearing at the end of his LEASE, which Rules
and Regulations are made a part hereof by reference. LESSEE shall give
immediate notice to LESSOR in case of fire or accident in said PREMISES or of
any defects, damage or injury therein or in any fixtures or equipment.
Section 10.2. Unless otherwise expressly provided, LESSOR shall not be required
to make any improvements, replacements or repairs of any kind or character to
the PREMISES during the term of this LEASE except such repairs as are set forth
in this section. LESSOR shall maintain only the roof, foundation, Building
common areas (including, but not limited to, hallways, lobby areas, stairways
and restrooms), parking areas, landscaped areas, exterior glass, and the
structural soundness of the exterior walls (excluding all overhead doors, if
any) of the BUILDING in good repair and condition except for reasonable wear
and tear. LESSEE shall repair and pay for any damage caused by LESSEE's
negligence or default. LESSEE shall immediately give written notice to LESSOR
of the need for repairs, which repairs shall be made by LESSOR beginning no
more than fifteen (15) days after written notice by LESSEE. LESSOR shall not be
liable to LESSEE, except as expressly provided in this LEASE, for any repairs,
alterations or additions made by LESSOR under this lease. LESSEE shall, at its
own cost and expense,
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maintain all other parts of the PREMISES and other improvements on the PREMISES
in good repair and condition including all necessary replacements.
Section 10.3. All repairs required to be made as a result of LESSEE's misuse or
neglect of said PREMISES or of damage to, or defacement of, the BUILDING or any
part thereof, by reason of LESSEE's tenancy therein shall be made at LESSEE's
expense.
Section 10.4. All requests for repairs or maintenance that are the
responsibility of LESSOR pursuant to any provision of this LEASE must be made in
writing to LESSOR at the address set forth in ARTICLE 2, or LESSOR's Management
Office within the BUILDING, if any.
ARTICLE 11 -- LESSEE COVENANTS TO COMPLY WITH GOVERNMENT
LESSEE, at the LESSEE's own cost and expense, shall comply with all
requirements of law and all ordinances, regulations and rules of any Federal,
State, Municipal or other public authority affecting the PREMISES, and with all
requirements of any insurance underwriter of the LESSOR. Further, LESSEE shall
fully comply with the terms and conditions of any permit or license required of
LESSEE by law or ordinance.
ARTICLE 12 -- LESSEE WASTE
LESSEE covenants and agrees not to commit any waste in or upon any portion of
the PREMISES during the term of this LEASE.
ARTICLE 13 -- LOSS OR DAMAGE TO PROPERTY
Section 13.1. All personal property belonging to LESSEE or to any other person
located in or about said PREMISES or the BUILDING shall be there at the sole
risk of LESSEE or such other person, and neither LESSOR nor LESSOR's agents or
employees shall be liable for the theft of misappropriation thereof, nor for any
damage or injury thereto, nor for death or injury of LESSEE or any other persons
or damage to property caused by water, snow, frost, steam, heat, cold, dampness,
falling plaster, explosions, sewers or sewerage, gas, odors, noise, the bursting
or leaking of pipes, plumbing, electrical wiring, and equipment and fixtures of
all kinds, or by any act or neglect of other tenants or occupants of the
BUILDING, or of any other person, or caused in any other manner whatsoever,
unless the same shall proximately result from the sole negligence of LESSOR or
LESSOR's agents, or employees. LESSEE will protect, indemnify and save harmless
LESSOR from all losses, costs or damages sustained by reason of any act or other
occurrence or failure to act causing death or injury to any person or damage to
property whomsoever or whatsoever due directly or indirectly to the use or
occupancy of said PREMISES or any part thereof by LESSEE, LESSEE's guests,
invitees or agents, or due directly or indirectly to any breach or default on
the part of the LESSEE in the performance of any covenant or agreement on the
part of LESSEE to be performed, except losses, costs or damage proximately
resulting from the sole negligence of LESSOR or LESSOR's agents or employees.
LESSEE covenants, upon notice from LESSOR, to resist or defend, at LESSEE's
expense, such action or proceeding by counsel reasonably satisfactory to LESSOR.
Section 13.2. If, because of any act or omission of LESSEE or anyone claiming
by, through, or under LESSEE, any mechanic's lien or order for the payment of
money shall be filed against the demised PREMISES or the BUILDING, or against
LESSEE (whether or not such lien or order is valid or enforceable as such).
LESSEE shall, at LESSEE's own cost and expense, cause the same to be canceled
and discharged of record within fifteen (15) days after the date of filing
thereof and shall also indemnify and save harmless LESSOR from and against any
and all costs, expenses, claims, losses or damages, including reasonable counsel
fees, resulting therefrom or by reason thereof.
ARTICLE 14 -- SURRENDER AT END OF TERM
Section 14.1. SURRENDER AND REMOVAL. LESSEE shall not allow any damage to be
committed on any portion of the PREMISES, and on or before the termination date
of this LEASE, the LESSEE shall surrender the PREMISES in as good condition as
when the LESSEE took possession, ordinary wear and tear, and loss by fire, other
than fire caused by the negligence or omission of the LESSEE or its employees,
agents or invitees, excepted (unless the waiver contained in ARTICLE 18 is
effective). The LESSEE shall remove from the PREMISES all of its Movable
Fixtures and make necessary repairs at its own cost and expense. The cost and
expense of any repairs necessary to restore the condition of the PREMISES shall
be borne by LESSEE, and if LESSOR undertakes to restore the PREMISES, it shall
remain with the LESSOR and title to all Movable Fixtures shall at all times
remain with the LESSEE, except that any Movable Fixtures remaining in the
PREMISES after the end of the LEASE term or earlier termination as hereinafter
provided, may at the LESSOR's option, be deemed abandoned and may either be
retained by the LESSOR as his property or disposed of in such a manner as the
LESSOR may deem fit. The LESSEE's obligations under this Section shall survive
the end of the LEASE term.
Section 14.2. MOVABLE FIXTURES. Movable Fixtures shall mean LESSEE's trade
fixtures and other personal property which were (a) furnished and installed at
the sole expense of the LESSEE, (b) not covered by any credit or allowance
granted by LESSOR to the LESSEE and (c) not affixed to the PREMISES.
Section 14.3. BUILDING IMPROVEMENTS. BUILDING improvements shall mean all
fixtures, equipment, improvements, alterations, installations and appurtenances
whether furnished by or at the expense of the LESSOR or the LESSEE, which are
affixed to or built into the PREMISES (including without limitation thereof all
electric, plumbing, heating and cooling equipment, elevator, fixtures and
outlets, partitions, doors, stairs, paneling, molding, shelving, cork, vinyl
composition tile, carpeting) excluding, however, any Movable Fixtures.
ARTICLE 15 -- HOLD OVER
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Should the LESSEE remain in possession of said PREMISES after the expiration of
this LEASE, with or without the consent of the LESSOR, then, unless a new
agreement in writing shall have been entered into between the parties hereto,
the LESSEE shall be a LESSEE from month-to-month, subject to all the covenants
and conditions of this LEASE, except that the rent shall be at 150% of the
monthly rent provided, however, that such tenancy may be terminated by either
party effective any day during such tenancy, by either party given written
notice at least thirty (30) days prior to such effective date. Notwithstanding
the foregoing, if the PREMISES are not surrendered at the end of the LEASE term,
the LESSEE shall indemnify and hold harmless the LESSOR against and from any
loss or liability resulting therefrom, including any claims made by any
succeeding LESSEE founded upon such delay.
ARTICLE 16 - HEAVY EQUIPMENT
The LESSEE shall not move any safe, heavy equipment, freight, bulky matter or
bulky fixtures into or out of the BUILDING, without the LESSOR's prior consent
which shall not be unreasonably withheld.
ARTICLE 17 - ASSIGNMENT, SUBLETTING, MODIFICATIONS
Section 17.1. LESSOR's NECESSARY CONSENT. The LESSEE covenants (a) not to assign
or convey this LEASE or any interest under it; (b) not to allow any transfer
hereof or any lien upon the LESSEE's interest by operation of law (c) not to
sublet the PREMISES or any part thereof, or (d) not to permit the use or
occupancy of the PREMISES or any part thereof by any other than the LESSEE,
without, in each instance, obtaining the prior written consent of the LESSOR,
any such assignment, sublease or permission without such written consent shall
be void and at the option of LESSOR shall terminate this LEASE.
Section 17.2. ASSUMPTION AND NO RELEASE OF LIABILITY. Any consent by the LESSOR
to any act of assignment, or subletting shall be held to apply only to the
specific transaction thereby authorized. Such consent shall not be construed as
a waiver of the duty of the LESSEE or the legal representatives or assigns of
the LESSEE to obtain from the LESSOR consent to any other or subsequent
assignment, or subletting or as modifying or limiting the rights of the LESSOR
under the foregoing covenant by the LESSEE. Any violation for any provision of
this LEASE, whether by act or omission, by any assignee, sub-tenant or occupant,
also shall be deemed a violation of such provision by the LESSEE, it being the
intention and meaning of the parties hereto that the LESSEE shall assume and be
liable to the LESSOR for any and all acts and omissions of any and all
assignees, sub-tenants and occupants. If this LEASE be assigned in accordance
with the terms of this LEASE, the LESSOR may, and is hereby empowered to collect
rent from the assignee. If the PREMISES or any part thereof be sublet or
occupied by any person other than the LESSEE, the LESSOR may, in the event of
the LESSEE's default, and is hereby empowered to, collect rent from the
sub-tenant or occupant, in any event, the LESSOR may apply the net amount
received by LESSOR from such assignee or sub-tenant or occupant to the rent
herein reserved, and no such collection shall be deemed a waiver of the
covenants herein against assignment and subletting or the acceptance of the
assignee, sub-tenant or occupant as LESSEE, or a release of the LESSEE from the
further performance of the covenants herein contained on the part of the LESSEE,
or a release of the LESSEE from the further performance of the covenants herein
contained on the part of the LESSEE.
Section 17.3. EFFECT OF MODIFICATIONS. The joint and several liability of the
LESSEE and any immediate or remote successor in interest of the LESSEE, shall
not be released, discharged or impaired in any respect by any agreement or
stipulation made by the LESSOR or any grantee or assignee, by way of mortgage,
or otherwise, of the LESSOR, or any such assignees extending the time of or
modifying any of the obligations of this LEASE, or any waiver of the LESSOR's
failure to enforce any of the obligation of this LEASE, which shall remain in
full force and effect and the LESSEE shall continue liable hereunder.
Section 17.4. TAKE BACK AND FIRST REFUSAL. If the LESSEE intends to request
LESSOR's consent to sublet the PREMISES, or to assign this LEASE, it shall make
such request in written form to notify the LESSOR or such intention before
offering the same to any party either directly or through any broker. In each
such event, the LESSOR may, within fifteen (15) days of LESSEE's notice, elect
to cancel this LEASE.
ARTICLE 18 - INSURANCE
Section 18.1. INCREASED COST OF CASUALTY INSURANCE. The LESSEE shall not do or
permit to be done any act or thing upon the PREMISES which will invalidate or be
in conflict with the provisions of the fire and extended coverage insurance
policies covering the BUILDING or the property therein nor shall the LESSEE do
or permit to be done any act or thing which will or might subject the LESSOR to
any liability or responsibility for injury to any person or to any property by
reason of any business or operation being carried on in the PREMISES. If by
reason of the failure of the LESSEE to comply with this section, the rate of
such insurance shall at any time be higher than it would otherwise have been,
then the LESSEE shall reimburse the lessor, as additional rent, for that part of
all premiums paid by the LESSOR which shall have been charged because of such
failure or use by the LESSEE.
Section 18.2. WAIVER OF SUBROGATION. The LESSOR and the LESSEE hereby release
each other from any and all liability or responsibility to the other, or anyone
claiming through or under them by way of subrogation or otherwise, for any loss
or damage to property caused by fire or other casualty included in extended
coverage, even if such fire or casualty shall have been caused by negligence of
the other party, or anyone for whom such party may be responsible; provided,
however, that his release shall apply only with respect to such loss or damage
occurring during the time that the releasor's insurance shall contain a
provision that such release shall not impair such coverage or prejudice the
right of the releasor to recover thereunder. The LESSOR and the LESSEE each
agree that each of their respective policies will include a waiver of
subrogation provision so long as the same shall be obtainable without extra
cost, or, if extra cost shall be charged therefor, provided the other party
shall pay such extra cost. If extra cost shall be chargeable therefor, each
party, at its election, may pay the same, but shall not be obligated to do so.
Section 18.3. LESSEE'S INSURANCE REQUIREMENTS. LESSEE shall carry, at its own
expense during the term hereof,
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public liability and property damage insurance with a combined single limit of
$1,000,000.00 (or such higher amounts as LESSOR may hereafter reasonably
require) covering injuries to persons or property in or about the PREMISES.
Said insurance shall be written by A-XII rated companies satisfactory to LESSOR
and LESSEE shall provide LESSOR with satisfactory evidence, if requested, of
such insurance, and LESSEE shall obtain from its insurance carrier a waiver of
subrogation against LESSOR. In the event LESSEE fails to obtain any insurance
as provided in this LEASE, LESSOR may obtain any such insurance, and the cost
thereof shall be paid by LESSEE as additional rent with the first payment of
the rent which is due subsequent to LESSOR'S incurring such cost, and LESSOR
shall have all remedies to collect the same as rent as in the LEASE provided,
and/or as otherwise provided by law for the collection of rent. Such policy
shall name LESSOR and others as may be designated by LESSOR as additional
insured.
ARTICLE 19 - ESTOPPEL CERTIFICATE
LESSEE shall at any time and from time to time upon not less than ten (10) days
prior written notice from LESSOR execute, acknowledge and deliver to LESSOR a
statement in writing (i) certifying that this LEASE is unmodified and in full
force and effect (or, if modified, stating the nature of such modification and
certifying that this LEASE, as so modified, is in full force and effect) and
the dates to which the rental and other charges are paid in advance, if any,
and (ii) acknowledging that there are not, to LESSEE'S knowledge, any uncured
defaults on the part of LESSOR hereunder, or specifying such defaults if any
are claimed. Any such statement may be relied upon by any prospective purchaser
or encumbrancer of all or any portion of the real property of which the
PREMISES are a part. LESSEE'S failure to deliver such statement within such
time shall be conclusive upon LESSEE (i) that this LEASE is in full force and
effect, without modification except as may be represented by LESSOR, (ii) that
there are no uncured defaults in LESSOR'S performance, and (iii) that not more
than one month's rental has been paid in advance.
ARTICLE 20 - UNTENABILITY
If said PREMISES shall be partially damaged by fire or other casualty, the
damage to said PREMISES shall be repaired by and at the expense of LESSOR and
the rent until such repairs shall be made shall be abated on a per diem basis
proportionate to the extent and for the period that said PREMISES are unfit for
occupancy. LESSOR shall incur no liability on account of any delay in the
completion of such repairs which may arise by reason of adjustment of
insurance, labor difficulties or any other cause beyond LESSOR'S control. If
all or substantially all of said PREMISES or the BUILDING are made unfit for
occupancy by fire or other casualty, acts of God or other cause, LESSOR may
elect (a) to terminate this LEASE as of the date when said PREMISES or the
BUILDING are so made unfit for occupancy, by written notice to LESSEE within 90
days after the date, or (b) to repair, restore or rehabilitate said PREMISES
or the BUILDING at LESSOR'S expense within 180 days after LESSOR is enabled to
take possession of the damaged PREMISES and undertake reconstruction or
repairs; and if LESSOR elects so to repair, restore or rehabilitate said
PREMISES or the BUILDING, this LEASE shall not terminate, but rent shall be
abated on a per diem basis proportionate to the extent and for the period that
said PREMISES are unfit for occupancy. In the event LESSOR shall proceed under
(b) above and shall not substantially complete the work within said 180 day
period (excluding from said period loss of time resulting from delays beyond
the reasonable control of LESSOR) either LESSOR or LESSEE may then terminate
this LEASE, as of the date when said PREMISES or the BUILDING were so made
unfit for occupancy, by written notice to the other not later than 10 days
after the expiration of said 180 day period, computed as herein provided.
Except as expressly provided in this ARTICLE, LESSEE shall not have any rights
to terminate this LEASE on account of any damage or destruction to said
PREMISES. In the event of termination of this LEASE pursuant to this ARTICLE,
rent shall be apportioned on a per diem basis to and including the effective
date of such termination.
ARTICLE 21 - RESERVED RIGHTS
Section 21.1 - CHANGES BY LESSOR. The LESSOR reserves the right to make any
alteration to the BUILDING, the PREMISES, the fixtures and equipment thereof,
the street entrances, doors, halls, corridors, passages, elevators, stairways
or other facilities which the LESSOR may deem necessary, if reasonable under
the circumstances.
Section 21.2 - CHANGE IN BUILDING ADDRESS. The LESSOR reserves the right
without liability to LESSEE to change the name or street address of the
BUILDING or the arrangement or location of entrances, passageways, doors,
doorways, corridors, elevators, stairs, toilets or other public parts of the
BUILDING.
Section 21.3 - ENTRY BY LESSOR. The LESSOR reserves the right to enter the
PREMISES at any reasonable times by pass key (a) for the making of inspections,
repairs, alterations, improvements or additions of or to the PREMISES or the
BUILDING as LESSOR may deem necessary or desirable; (b) to exhibit the PREMISES
to others; (c) for any purpose whatsoever related to the safety, protection,
preservation or improvements of the PREMISES of the BUILDING or of the LESSOR'S
interest; (d) in order to provide the services set forth in ARTICLE 8 hereof.
Any such entering shall be done with a minimum of interruption to the LESSEE
and the conduct of the business or undertakings by the LESSEE in the PREMISES.
Section 21.4 - USE OF CONTRACTORS. The LESSOR reserves the right to designate
all sources furnishing sign painting, lettering, vending machines, towel or
toilet supplies, or other similar services required in said PREMISES.
Section 21.5 - SIGNS. LESSEE shall not place or permit to be placed any sign,
advertisement, notice or other display on any part of the inside or outside of
the PREMISES, except of such color, size and style and in such locations as
shall be designated by LESSOR. LESSEE, upon request of LESSOR, shall
immediately remove any sign, advertisement, notice or other display which
LESSEE has placed or permitted to be placed on any part of the inside or
outside of the PREMISES, which, in the opinion of LESSOR, is objectionable,
offensive or not in good taste, and if LESSEE shall fail so to do, LESSOR may
enter the PREMISES and remove the same at the expense of LESSEE.
ARTICLE 22 - ACCESS TO BUILDING
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LESSEE, for LESSEE and for LESSEE'S agents, employees, visitors, licensees, and
invitees, agrees that all such persons desiring to enter or leave the BUILDING
at other than normal business hours, shall use such entrances or exits as may
be designated by LESSOR, and shall comply with BUILDING security regulations
established from time to time by LESSOR, so as to establish the right of such
persons to enter or to leave the BUILDING. The provisions of this ARTICLE shall
not require the LESSOR to keep the BUILDING open other than during normal
business hours.
ARTICLE 23 - RELOCATION OF PREMISES
(This Article is intentionally deleted.)
ARTICLE 24 - COMMON AREAS
LESSEE and LESSEE'S agents, employees, licensees, and invitees shall have the
right to use, in common with LESSOR and LESSOR'S tenants and the agents,
employees, licensees and invitees of each, the public sidewalks, entrances,
lobbies, vestibules, stairways, corridors, passenger and freight elevators,
public toilets and other public areas of the BUILDING subject, however, to
applicable BUILDING rules, regulations and security measures; and LESSEE and
LESSEE'S agents, employees, licensees and invitees shall not obstruct or
litter, or use for storage (temporary or otherwise) or for the display of
merchandise or services, or for any purpose other than the intended and normal
purpose, any of said public sidewalks, entrances, lobbies, vestibules,
stairways, corridors, passenger and freight elevators, public toilets and other
public areas of said BUILDING; and no floor mats or runners shall be placed by
LESSEE in any BUILDING corridor, lobby or vestibule. Notwithstanding the
foregoing, LESSOR shall be free to change, reduce, enlarge or alter any of the
Common Areas, all in LESSOR'S sole discretion.
ARTICLE 25 - NO WAIVER
Section 25.1 - RECEIPT OF FUNDS. No receipt of money by LESSOR from LESSEE with
knowledge of the breach of any covenants of the LEASE, or after the termination
hereof, or after the service of any notice, or after the commencement of any
suit, or after final judgment for possession of said PREMISES shall be deemed a
waiver of such breach, nor shall it reinstate, continue or extend the term of
this LEASE or affect any such notice, demand or suit.
Section 25.2 - DELAYS. No delay on the part of LESSOR in exercising any right,
power or privilege hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, power or privilege preclude any other,
or further, exercise thereof or the exercise or any other right, power or
privilege.
Section 25.3 - THIRD PARTY ACTS. No act done or thing said by LESSOR or
LESSOR'S agents or employees shall constitute a cancellation, termination or
modification of this LEASE, or a waiver of any covenant, agreement or condition
hereof, nor relieve LESSEE from LESSEE'S obligation to pay the rents reserved
or other charges to be paid hereunder. Any waiver or release by LESSOR and any
cancellation, termination or modification of this LEASE must be in writing
signed by LESSOR.
ARTICLE 26 - LESSOR'S REMEDIES
Section 26.1 - BANKRUPTCY. This LEASE and term hereby granted is subject to the
limitation that if any voluntary or involuntary petition or similar pleading
under any Act of Congress relating to bankruptcy shall be filed by or against
LESSEE or if any voluntary proceedings in any court or tribunal shall be
instituted by or against LESSEE to declare LESSEE insolvent or unable to pay
LESSEE'S debts, then and in any such event LESSOR may, if LESSOR so elects,
with or without entry or other action by LESSOR, forthwith terminate this
LEASE, and, notwithstanding any other provisions of this LEASE, LESSOR shall
forthwith upon such termination file for any and all damages pursuant to the
Bankruptcy Act.
Section 26.2 - DEFAULT CONDITIONS OF LIMITATIONS. If the LESSEE is in default
in the payment of rent when due, or within ten (10) days thereafter or fails to
pay LESSOR'S charges for water, electrical or other services within ten (10)
days after rendition of statement, or is in default of the prompt or full
performance of any other provisions of this LEASE after thirty (30) days
written notice sent to the LESSEE by the LESSOR, or if the leasehold interest
of the LESSEE be levied upon under execution or be attached, or if the LESSEE
makes an assignment for the benefit of creditors, or if a receiver be appointed
by or for the LESSEE, or if the LESSEE abandons the PREMISES, then and in any
such event the LESSOR may, if the LESSOR so elects, with or without notice of
such election, except as herein provided, with or without demand, (a) cease to
provide any or all services to LESSEE hereunder or (b) forthwith terminate this
LEASE and the LESSEE'S right to possession of the PREMISES; provided, however,
that if the LESSOR has notified the LESSEE to cure defaults under the thirty
day notice as above provided and the curing of such defaults cannot be effected
within said thirty day period but has been commenced during said thirty day
period, and provided that once begun the LESSEE proceeds without delay beyond
his control to complete the necessary work to cure said defaults, then the
LESSOR shall not exercise the rights otherwise contained in this Section.
Section 26.3 - DAMAGES. If the LESSEE abandons the PREMISES or if the LESSOR
elects to terminate the LESSEE'S right to possession only without terminating
the LEASE as above provided, the LESSOR may remove from the PREMISES any and
all property found therein and such repossession shall not release the LESSEE
from LESSEE'S obligation to pay the rent herein reserved in addition to any
damages as hereinafter provided. After any such repossession by LESSOR without
termination of the LEASE, the LESSOR may, but need not, relet the PREMISES or
any part thereof to any person, firm, or corporation and for such time and upon
such terms as the LESSOR in the LESSOR'S sole discretion may determine
including letting the same for a period after the expiration of this LEASE, and
the LESSOR may make repairs, alterations, and additions by and to the PREMISES
and redecorate the same to the extent deemed by the LESSOR necessary or
desirable, and the LESSEE, upon demand in writing, shall pay the cost thereof
together with the LESSOR'S expenses or reletting, including
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commissions relative thereto. If the rents collected by the LESSOR upon any such
reletting are not sufficient to pay monthly the full amount of the rent reserved
herein, together with the costs of such repairs, alterations, additions,
redecorating and expenses, the LESSEE shall pay to the LESSOR the amount of each
monthly deficiency upon demand in writing. LESSEE shall be obligated to pay to
LESSOR any and all costs expended by LESSOR in connection with LESSEE'S default
together with interest thereon at the maximum legally allowable contract rate of
interest to which a party can agree in addition to any legal fees incurred.
Section 26.4 - ABANDONED PROPERTY. Any and all property which may be removed
from the PREMISES by the LESSOR in accordance with the terms of this LEASE, may
be handled, removed, stored or otherwise disposed of by the LESSOR at the risk
and expense of the LESSEE, the LESSOR, in no event shall be responsible for the
preservation or safekeeping thereof. The LESSEE shall pay to the LESSOR, upon
demand in writing, any and all expenses incurred with such removal and all
storage charges against such property so long as the same shall be in the
LESSOR'S possession or under the LESSOR'S control. If any property shall remain
in the PREMISES or in the possession of the LESSOR and shall not be retaken by
the LESSEE within a period of ten (10) days from and after the time when the
PREMISES are either abandoned by the LESSEE or repossessed by the LESSOR under
the terms of this LEASE, said property shall conclusively be deemed to have been
forever abandoned by the LESSEE.
Section 26.5 - LESSOR'S LIEN. LESSOR and LESSEE agree that all of the goods,
chattels, trade fixtures and other personal property belonging to LESSEE which
are or may be put into said PREMISES during said term, whether exempt or not
from sale under execution or attachment, shall at all times be bound with a lien
in favor or LESSOR and shall be chargeable for all rents hereunder and to the
fulfillment of the other covenants and agreements of LESSEE herein contained. In
the event of any default of LESSEE hereunder, LESSOR shall have the right to
sell all or any part of said property at public or private sale, without giving
notice to LESSEE or any notice of sale, all notices required by statute or
otherwise being hereby expressly waived, and to apply the proceeds of such sale,
first, to the payment of all costs and expenses of conducting the sale and/or
caring for or storing said property; second, toward the payment of any
indebtedness which may be or may become due from LESSEE to lessor; and, third,
to pay to LESSEE on demand in writing any surplus remaining after all
indebtedness of LESSEE to LESSOR has been fully paid.
Section 26.6 - ACTION FOR BREACH. At the sole option of the LESSOR, any
violation, failure to perform, or breach of any of the ARTICLES or Sections of
this LEASE by the LESSEE, or by any assignee, sub-tenant or other occupant, may
be treated by the LESSOR as giving rise to a cause of action for damages, or as
a forfeiture, or both.
ARTICLE 27 - CONDEMNATION
If a whole or a substantial part of the BUILDING containing the PREMISES shall
be taken for any public or quasi-public use by right of any statute or by right
of eminent domain or by any governmental authority vested with the power of
eminent domain, then when possession shall be taken thereunder of the PREMISES
or any part thereof, the term herein and all rights of the LESSEE hereunder
shall immediately cease and terminate and the rent shall be adjusted as of the
time of such termination. Any award for the taking of all or any part of the
PREMISES under the power of eminent domain, or any payment made under the threat
of the exercise of such power, shall be the sole property of the LESSOR. In no
event whatsoever shall LESSEE have any claim against LESSOR by reason of any
appropriation, condemnation or taking of the whole or any part of said PREMISES
or of said BUILDING, nor shall LESSEE have any claim to the amount, or any
portion thereof, that may be awarded as damages or paid as a result of such
appropriation and taking. LESSEE hereby assigns to LESSOR all of LESSEE'S right,
title and interest in and to any and all amounts awarded or paid by reason of
such appropriation, condemnation and taking. Notwithstanding anything contained
herein to the contrary, Lessee shall have the right to make a separate,
independent claim against any condemning authority for any loss or damage
suffered by Lessee as a result of any such condemnation, provided such separate
claim does not reduce Lessor's claim.
ARTICLE 28 - SUBORDINATION OF LEASE
This LEASE shall be subordinate to any mortgage or mortgages which are now or
may be hereafter placed upon the BUILDING and/or Land of which said PREMISES are
a part. In the event any proceedings are brought for the foreclosure of any such
mortgage, LESSEE covenants that it will, to the extend of the LESSOR'S interest
affected by such foreclosure, attorn to the purchaser upon any such foreclosure
sale and recognize such purchaser's interest as LESSOR under this LEASE. LESSEE
agrees to execute and deliver at any time and from time to time, upon the
request of LESSOR or of any such holder, any instrument which, in the sole
judgment of LESSOR, may be necessary or appropriate in any such foreclosure
proceeding or otherwise to evidence such attornment. LESSEE hereby appoints
LESSOR and the holder of such mortgage or either of them, the attorney-in-fact,
irrevocably, of LESSEE to execute and deliver for and on behalf of LESSEE any
such instrument. LESSEE further waives the provisions of any statute or rule of
all, now or hereafter in effect, which may give or purport to give LESSEE any
right or election to terminate or otherwise adversely affect this LEASE and the
obligation of LESSEE hereunder in the event any such foreclosure proceeding is
brought, and agrees that this LEASE shall not be affected in any way whatsoever
by any such foreclosure proceeding.
ARTICLE 29 - SALE BY LESSOR
In the event of sale or conveyance by LESSOR of the BUILDING containing the
PREMISES, the same shall operate to release LESSOR from any future liability
upon any of the ARTICLES or Sections herein contained in favor of LESSEE, and in
such event, LESSEE agrees to look solely to the successor in interest of LESSOR
in and to this LEASE for the observance or performance of any such covenants or
conditions. Any security deposit given by LESSEE to secure the faithful
performance of or any of the covenants of this LEASE on the part of LESSEE,
LESSOR may transfer and/or deliver to the Purchaser and/or grantee of the
BUILDING, and thereupon LESSOR shall be discharged from any further liability
therefor.
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ARTICLE 30 - COVENANTS RUNNING WITH THE LAND
The ARTICLES and Sections of this LEASE shall be covenants running with the
land, with the estate created hereby and shall be binding upon and inure to the
benefit of the LESSOR, the LESSOR'S heirs, personal representatives, successors
and assigns, and to LESSEE and the LESSEE'S respective heirs, personal
representatives, successors and assigns, and wherever in this LEASE the
singular is used, it shall include the plural as the context and meaning so
require, and wherever any gender is used it shall include every other gender
where the context and meaning so require; provided, however, that this LEASE
shall be binding upon the LESSOR'S heirs, personal representatives, successors
and assigns in and for such period only as said LESSOR and the LESSOR'S heirs,
personal representatives, successors and assigns respectively shall be the
record owners of the herein PREMISES.
ARTICLE 31 - NOTICES
In every instance where it shall be necessary or desirable for the LESSOR to
serve any notice or demand upon the LESSEE, such notice or demand shall be
deemed sufficiently given or made if, in writing, and sent by certified mail
addressed to the LESSEE at the BUILDING of which these PREMISES are a part or
left at said PREMISES addressed to LESSEE, and the time of the making or giving
of such notice or demand shall be deemed to be the time when the same is
delivered to LESSEE, mailed, or left at the PREMISES as herein provided, any
notice by LESSEE to LESSOR must be served by certified mail, addressed to the
LESSOR at the address where the last previous rental hereunder was paid.
ARTICLE 32 - SEPARABILITY
If any ARTICLE or Section of this LEASE or the application thereof to any
person or circumstance shall, to any extent, be invalid or unenforceable, the
remainder of this LEASE, or the application of such ARTICLES or Section other
than those as to which it is held invalid or enforceable, shall not be affected
thereby and each ARTICLE or Section of this LEASE shall be valid and be
enforced to the fullest permitted by law.
ARTICLE 33 - INCORPORATION OF PRIOR AGREEMENTS AND AMENDMENTS
This LEASE contains all agreements of the parties with respect to any matter
referred to herein. No prior agreement or understanding pertaining to any such
matter shall be effective. This LEASE may be modified in writing only, signed
by the parties in interest at the time of application.
ARTICLE 34 - RECORDING
If either of the parties hereto desire to record this LEASE, LESSOR and LESSEE
agree to execute a Memorandum of this LEASE, which Memorandum of Lease may then
be recorded in the office of the county Recorder at Dallas County, Texas. Upon
written request of LESSOR, LESSEE will at any time and from time to time
execute with LESSOR such forms of security agreement and financing statements
for filing as in the opinion of counsel for LESSOR is reasonably necessary to
protect the rights, priorities and liens of LESSOR hereunder.
ARTICLE 35 - QUIET ENJOYMENT
If Lessee shall (a) pay the rent reserved, the charges for services stipulated
herein and other amounts to be paid by LESSEE to LESSOR, and (b) well and
faithfully keep, perform and observe all of the covenants, agreements and
conditions herein stipulated to be kept, performed and observed by LESSEE,
LESSEE shall at all times during the term of this LEASE have the peaceable and
quiet enjoyment of said PREMISES without hindrance of LESSOR or any person
lawfully claiming under LESSOR, subject, however, to the terms of this LEASE
and any mortgage provided for hereinabove.
ARTICLE 36 - THE RULES AND REGULATIONS
A copy of the Rules and Regulations is attached hereto as Exhibit "E" and made
a part hereof as fully as though herein rewritten. LESSEE grants to LESSOR the
right to make such change therein from time to time as in LESSOR'S judgment may
be necessary for the best interest, safety, care and cleanliness of the
PREMISES, the BUILDING, parking area and driveways, and for the preservation of
good order therein. LESSEE agrees to comply with and abide by all such rules
and regulations including amendments thereof. Nothing in this LEASE contained
shall be construed to impose upon LESSOR any duty or obligation to enforce the
Rules and Regulations in any other lease as against any other tenant, and
LESSOR shall not be liable to LESSEE for violation of the same by any other
tenant or the agents, employees, licensees or invites of such other tenant.
ARTICLE 37 - BROKER
LESSEE represents and warrants to LESSOR that it has authorized Bennett Litwin
of Litwin & Co. to negotiate with the LESSOR this LEASE to the LESSEE of the
above described PREMISES or the BUILDING thereon. LESSEE acknowledges that
LESSOR has an Exclusive Agency Agreement with William Roth Company and that
LESSOR has agreed to pay William Roth Company a commission in connection with
this Lease as provided for in said Exclusive Agency Agreement.
ARTICLE 38 - ARTICLE HEADINGS
The ARTICLE headings appearing in this LEASE are inserted only as a matter of
convenience and for reference purposes, and in no way define, limit or describe
the scope and intent of this LEASE, or any ARTICLE hereof, nor in any way
affect it.
ARTICLE 39 - ENTIRE AGREEMENT
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This LEASE contains the entire agreement between the parties hereto and shall
not be modified in any manner except by an instrument in writing executed by
said parties or their respective successors in interest.
ARTICLE 40 - REPRESENTATIVE CAPACITY
This LEASE is offered to LESSEE by LESSOR subject to the Project Owner's
acceptance and approval. In the absence of fraud, no person, firm or
corporation, or their heirs, personal representative, successors and assigns,
respectively thereof, executing this LEASE as agent, administrator, executor,
trustee, or in any other representative capacity shall ever be deemed or held
individually liable hereunder for any reason or cause whatsoever.
ARTICLE 41 - EXCULPATION ARTICLE
CLEVETRUST REALTY INVESTORS, the Project Owner, is a Massachusetts business
trust governed by the terms of a Second Amended and Restated Declaration of
Trust dated as of February 21, 1992, as amended. No obligation of the Trust is
personally binding upon, nor shall resort be had to the private property of,
any of the trustees, shareholders, officers, employees or agents of the Trust,
but the herein described PROJECT only shall be bound.
ARTICLE 42 - SUCCESSORS AND ASSIGNS
The covenants, agreements and conditions contained in this LEASE shall bind and
inure to the benefit of LESSOR and LESSEE and their respective heirs, legal
representatives, successors, and assigns, subject, at all times, nevertheless,
to all restrictions herein contained with respect to the assignment of LESSEE'S
interest in this LEASE.
ARTICLE 43 - APPLICABLE LAW
This LEASE shall be construed and enforced in accordance with the laws of the
State of Texas.
ARTICLE 44 - NOTICE TO VACATE
A written notice of intent to vacate is required ninety (90) days in advance of
the expiration of this LEASE.
ARTICLE 45 - OTHER PROVISIONS
Notwithstanding anything to the contrary contained herein, LESSEE acknowledges
that LESSOR 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 of habitability or suitability of the Premises. This
Lease is an enforceable, legally binding agreement. The real estate Brokers
involved in the negotiation cannot give legal advice. The parties to this Lease
acknowledge that they have been advised by the Brokers to have this Lease
reviewed by competent legal counsel of their choice before signing this Lease.
By executing this Lease, Lessor and Lessee each agree to the provisions, terms,
covenants and conditions contained herein.
The following Addendum and Exhibits are a part of this LEASE: Addendum Exhibit "A" - Floor Plan
Exhibit "B"-Rent Escalation Rider Exhibit "C" - Work Letter Exhibit "D" - Special Specifications
Exhibit "E" - Rules and Regulations
IN WITNESS WHEREOF: LESSEE and LESSOR have respectively executed triplicate
counterparts of this LEASE AGREEMENT as of the day and year first above written.
LESSOR:
CLEVETRUST REALTY INVESTORS, A WITNESS, as to LESSOR;
Massachusetts business trust
------------------------------
By /s/ [SIG]
------------------------------------ ------------------------------
Title
LESSEE: WITNESSES, as to LESSEE;
------------------------------
By /s/ ROBERT F. HOLMES VP, Operations
------------------------------------ ------------------------------
Title
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ADDENDUM TO LEASE AGREEMENT
BY AND BETWEEN
CLEVETRUST REALTY INVESTORS, AS LESSOR
AND
EDIFY CORPORATION, AS LESSEE
1. ANNUAL BASE RENT. Lessee covenants and agrees to pay to Lessor as Annual
Base Rent for said Premises, without demand or notice, the following sums
throughout the term of this Lease as set forth below:
Period Period Base Rent Monthly Installment
------ ---------------- -------------------
October 1, 1996 - September 30, 1997 $49,320.00 $4,110.00
October 1, 1997 - September 30, 1998 $51,432.00 $4,286.00
October 1, 1998 - September 30, 1999 $53,556.00 $4,463.00
October 1, 1999 - September 30, 2000 $55,668.00 $4,639.00
2. RENEWAL OPTION. If, and only if, on the Expiration Date and on the date
Lessee notifies Lessor of its intention to renew the term of this Lease by
written notice at least six (6) months prior to the Expiration Date, (i) Lessee
is not in default under this Lease, (ii) Lessee then occupies and the Premises
then consist of at least 4,233 rentable square feet and (iii) this Lease is in
full force and effect, then Lessee, but not any assignee or subtenant of
Lessee, shall have and may exercise an option to renew this Lease for one (1)
additional term of three (3) years (the "Renewal Term") upon the same terms and
conditions contained in this Lease with the exceptions that (x) this Lease
shall not be further available for renewal and (y) the rental for the Renewal
Term shall be the "Renewal Rental Rate", but in no event will the Annual Base
Rent be less than the Annual Base Rent for the last twelve (12) calendar months
of the initial term of the Lease. The Renewal Rental Rate is hereby defined to
mean the then prevailing rents (including, without limitation, those similar to
the Annual Base Rental and Additional Rent) for properties of equivalent size,
quality, utility and location, with the length of the lease term and credit
standing of the lessee to be taken into account.
3. ACCESS CARDS. Lessee shall be allowed ten (10) building access cards at
no charge during the term of this Lease. Additional cards are available at a
cost of $10.00 per card upon move-in, nonrefundable. Lost or replacement cards,
thereafter, are available at a charge of $25.00 per card, nonrefundable.
4. PARKING. Lessee shall be allowed three (3) covered parking spaces at no
charge during the term of this Lease.
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EXHIBIT "A"
FLOOR PLAN
[MAP OF FLOOR PLAN]
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EXHIBIT "B"
RENT ESCALATION RIDER
As used in this Lease, the following terms shall have the following respective
meanings:
(a) "Annual Base Rent" - The minimum annual rent to be paid by LESSEE to
LESSOR pursuant to the provisions of ARTICLE 2.
(b) "Adjusted Annual Rent" - The Annual Base Rent as hereinafter increased or
decreased in accordance with the provisions hereof, but in no event less
than the minimum Annual Base Rent.
(c) "Operating Expenses" - All expenses incurred in any calendar year during
the term of this LEASE, with respect to the operation, management and
maintenance of the BUILDING and the parking area in accordance with
accepted principles of sound management and accounting practices as
applied to the operation maintenance of first class office buildings,
including without limitation thereof, cost of janitorial service, cleaning
service, cleaning materials, equipment, the cost of leasing necessary
equipment, supplies, salaries (wages and fringe benefits, including
workmen's compensation, disability benefits, insurance payroll taxes, and
welfare benefits), and other personal costs of engineers, superintendents,
watchmen, building managers, and other building employees, utilities
(other than those billed directly to tenants), heating, air conditioning,
repairs and maintenance, insurance (fire and extended coverage, liability,
boiler, property damage, glass, rental and other necessary and
appropriate) expenses for elevator maintenance, mechanical equipment,
maintenance, window washing, legal, accounting, and arbitration expenses,
management fees, landscaping, rubbish removal, maintenance of parking
areas, removal of snow and ice, the lighting, policing, lining and repair
of parking areas and sidewalks, personal or tangible taxes, if any, and
other services, but shall not include:
(i) cost of any capital improvements made after the commencement of the
term which are not for the general benefit of tenants of the BUILDING
except that in the case of the installation of a substantial labor or cost
saving device or operation, Operating Expenses in each year shall include
the expense thereof amortized over a reasonable number of years.
(ii) expenses for painting, redecorating, or other work performed for
other tenants in the BUILDING other than painting, redecorating and other
work which is standard for the BUILDING.
(iii) expenses for repairs and other work occasioned by fire, windstorm or
other insurable casualty;
(iv) expenses incurred in leasing or procuring new tenants including lease
commissions, advertising expenses and expenses of renovating space for new
tenants;
(v) legal expenses incurred in enforcing the terms of any lease;
(vi) except as provided above, interest or amortization payment of any
mortgages;
(vii) wages, salaries, or other compensation paid for clerks or attendants
in concessions or newsstands operated by LESSOR.
(d) "Taxes" - The taxes and assessments, special or otherwise and sewer
charges, if any, including expenses incurred in connection with disputing
or contesting the amounts thereof, levied or assessed for any calendar
year (regardless as to when said taxes are to be paid), or partial year,
upon or with respect to the BUILDING and the land upon which it is located
by Federal, State or Municipal government. Should any governmental
authority having jurisdiction hereafter impose a tax and assessment, or
either (other than an income tax or a franchise tax), upon or against the
Annual Base Rent payable hereunder or on the privilege of renting, leasing
or letting real property, either in substitution for, or in lieu of, the
taxes and assessments now levied or assessed against said land and the
BUILDING, or in addition thereto, such tax and assessment, or either,
shall be deemed to constitute a tax and assessment, or either, against
said land and the BUILDING for the purposes of this sub-paragraph (d). Any
increase in such tax and
1
14
EXHIBIT "B"
RENT ESCALATION RIDER
(CONTINUED)
assessments attributable to new additions made after the commencement of the
term which are not for the general benefit of tenants of the BUILDING shall be
excluded.
COMPUTATION OF RENTAL ADJUSTMENTS. The Annual Base Rent shall be adjusted
commencing with the first year of the LEASE term and for each subsequent year
of the LEASE term in the event that the Operating Expenses and Taxes (as
defined above) of LESSOR for the BUILDING, including any parking area serving
the BUILDING, shall in any calendar year during the term of this LEASE, exceed
the sum of actual expenses for calendar year 1996 per square foot.
The adjustment for the period when the first LEASE year begins to the end of
said calendar year shall be paid in a lump sum within sixty (60) days of notice
to LESSEE of such amount, and commencing at the beginning of the next calendar
year monthly estimated payments shall be made.
Thereafter, for each subsequent calendar year, LESSOR shall make an estimate of
the Operating Expenses and Taxes for the next calendar year and the monthly
installments of the Annual Base Rent for the next succeeding calendar year
shall be adjusted to the extent necessary to pay an estimate Adjusted Annual
Rent in equal monthly installments commencing with the next due monthly rental
installment.
During each subsequent calendar year, the LESSOR shall calculate the actual
Operating Expenses and Taxes for the previous calendar year and furnish LESSEE
with a statement setting forth the total sum due LESSOR or LESSEE,
respectively, and such difference, if any, shall be paid by the LESSOR or
LESSEE, respectively, in a lump sum payment within sixty (60) days of notice to
LESSEE of such difference.
(a) For any fractional portion of a calendar year at the termination of
this LEASE, any overpayment or underpayment shall be settled and accounted for
in the same manner as at the end of a full calendar year and shall be based on
the calendar year Operating Expenses and Taxes to date.
(b) LESSOR shall keep and make available to LESSEE, at its corporate
offices, for a period of twelve (12) months after the statement above referred
to is rendered to LESSEE, records in reasonable detail of Taxes and Operating
Expenses for the period covered by such statement and shall permit LESSEE and
the representatives of LESSEE at LESSOR's expense to examine and audit such
statements and records at any reasonable time during business hours. IF LESSEE
shall dispute any item or items included by LESSOR in determining Taxes or
Operating expenses, and such dispute is not amicably settled between LESSOR and
LESSEE within thirty (30) days after such statement has been rendered, either
party may, during the twenty (20) days next following the expiration of said
thirty (30) day period, notify the other of the election to arbitrate said
dispute and may then refer such disputed item or items or computation to a
reputable firm of independent certified public accountants reasonably selected
by LESSOR for decision of such firm shall be conclusive and binding upon LESSOR
and LESSEE. The expense involved in such determination shall be borne by the
party against whom a decision is rendered by said accountants provided that
when the decision of the arbitrator is party against each party the arbitrator
shall equitably apportion the expense of the decision between the parties. If
LESSEE shall not dispute any item or items of any such statement within thirty
(30) days after such statement has been rendered, LESSEE shall be deemed to
have approved such statement.
2
15
EXHIBIT "C"
WORK LETTER
Development: OFFICE ALPHA - 13140 COIT ROAD Suite No.: 310
---------------------------------- ------------------
4,233
---------------------------------- Sq.Ft.: ------------------
Requested By: 8/26/96
---------------------------------- Date: ------------------
=============================================================================================================================
ITEM DESCRIPTION OF WORK/MATERIALS QUANTITY UNIT COST TOTAL COST
=============================================================================================================================
CARPET Partial replacement $2,876.25
- -----------------------------------------------------------------------------------------------------------------------------
Paint Repaint throughout $3,096.90
- -----------------------------------------------------------------------------------------------------------------------------
Wallcovering $0.00
- -----------------------------------------------------------------------------------------------------------------------------
Lighting Fixtures $1,350.00
- -----------------------------------------------------------------------------------------------------------------------------
Electrical Fixtures $1,080.00
- -----------------------------------------------------------------------------------------------------------------------------
Tile - ceiling $360.00
- -----------------------------------------------------------------------------------------------------------------------------
Partitions Demo and new construction $1,868.50
- -----------------------------------------------------------------------------------------------------------------------------
Doors Doors, labor, stops and hardware $2,271.50
(including touch-up of existing)
- -----------------------------------------------------------------------------------------------------------------------------
Cleaning Trash removal and final clean $250.00
- -----------------------------------------------------------------------------------------------------------------------------
Mill-work & Incl. cabinetry and phone board $1,450.00
shelving
- -----------------------------------------------------------------------------------------------------------------------------
Plumbing & HVAC $2,800.00
- -----------------------------------------------------------------------------------------------------------------------------
Mini-blinds $245.00
- -----------------------------------------------------------------------------------------------------------------------------
Coordination & $565.00
Labor
- -----------------------------------------------------------------------------------------------------------------------------
Sidelight $400.00
- -----------------------------------------------------------------------------------------------------------------------------
Other Insurance, fee, permit and sales tax $3,348.97
- -----------------------------------------------------------------------------------------------------------------------------
LESSEE HEREBY REQUESTS LESSOR TO PERFORM THE ABOVE ESTIMATED COST $21,962.12
DESCRIBED WORK ---------------
EST. LESSEE COST $0.00
---------------
LESSOR COST $21,962.12
------------------------------------------
FOR LESSOR'S USE ONLY
------------------------------------------
Rent per sf
APPROVED BY: ----------------
------------------------------------------------------------------
Finish costs per sf $5.19
TITLE: ----------------
------------------------------------------------------------------
Effective Rent per sf
----------------
DATE:
- -----------------------------------------------------------------------------------------------------------------------------
16
EXHIBIT "D"
SPECIAL SPECIFICATIONS
The construction of the Premises shall conform to the floorplan attached hereto
and instructions set forth below. Notwithstanding anything contained in Article
6.2 to the contrary, the cost of these Special Specifications is already
reflected in the Work Letter included with this Lease as Exhibit "C" and shall
be borne by Lessor. The cost of any further changes to the Special
Specifications attached hereto shall thereafter be handled in the manner set
forth in Article 6.2.
1 Remove one door to hallway and fill-in with wall.
2 Remove interior partitions to make one large room. New carpet in this
large room.
3 Add door as noted.
4 Demo wall partitioning suites.
5 Install opening between suites as noted.
6 Remove one door to hallway and fill-in with wall.
7 Replace existing with new carpet.
8 Install door as noted.
9 Demo existing walls. Patch carpet with reusable material from area marked
with number 2.
10 Install plumbing and kitchen cabinetry (8' upper and lower cabinetry) as
noted. Allow room for under-the-counter refrigerator. Install water lines
for icemaker and coffeemaker.
11 Re-paint suite with color to be selected by Lessee from management office
selections.
12 Mini-blinds for all offices and interior glass walls.
13 Clean remaining, existing carpet in all areas other than those marked by
numbers 2 and 7.
14 Create closet with door and shelving.
17
EXHIBIT "D"
SPECIAL SPECIFICATIONS
(continued)
[DIAGRAM OF SPECIAL SPECIFICATIONS]
18
EXHIBIT "E"
RULES AND REGULATIONS
1. Nothing shall be affixed to or projected beyond the outside of the
BUILDING by LESSEE without the prior written consent of LESSOR.
2. Unless expressly permitted by LESSOR, no sign, advertisement, notice or
other lettering shall be exhibited, inscribed, painted or affixed on any part
of the outside or inside of the BUILDING, except on the glass or panels of the
doors of the PREMISES, and then only of subject matter and such color, size,
style and material as shall conform to the specification of LESSOR. LESSOR
reserves the right to remove all other signs or lettering, without notice to
LESSEE, at the expense of LESSEE.
3. No show cases or other articles shall be affixed to any part of the
exterior of the building, nor placed in halls, corridors, or vestibules without
the prior written consent of LESSOR.
4. Any newspaper, magazine or other advertising done from said PREMISES, or
referring to said PREMISES or the BUILDING, which in the opinion of LESSOR is
objectionable, shall be immediately discontinued upon notice from LESSOR.
5. Unless expressly permitted by LESSOR, no bicycle or other vehicle and no
animal or bird shall be brought or permitted to be in the BUILDING or any part
thereof.
6. Unless expressly permitted by LESSOR, all doors to said PREMISES are to be
kept closed at all times except when in actual use for entrance to or exit from
said PREMISES. LESSEE shall be responsible for the locking of doors and the
closing of transoms and windows in and to said PREMISES. LESSEE shall be
responsible for any damage or loss resulting from violation of this rule.
7. Unless LESSOR gives prior written consent in each and every instance,
LESSEE shall not install or operate any steam or internal combustion engine,
boiler, machinery, refrigerating or heating device or air conditioning
apparatus in or about said PREMISES, or carry on any mechanical business
therein. If consent is given, all equipment of any electrical or mechanical
nature shall be placed in settings which absorb and prevent vibration, noise,
or annoyance, or the spillage of leakage of fluids, oils or grease on the
floors of said PREMISES.
8. Moving or delivery of furniture, trade fixtures and equipment, and freight
by or for LESSEE shall be done at such time and in such manner as may be
required by LESSOR. LESSEE shall list with LESSOR any and all furniture, trade
fixtures and equipment, and similar articles to be removed from the BUILDING,
and the list must be approved at the office of the BUILDING before building
employees shall permit any article to be removed. LESSOR reserves the right,
but shall not be obligated, to inspect all articles being moved in or out of
the BUILDING, and LESSOR shall not be liable to LESSEE or to any other person
for loss, or damage to, any furniture, trade fixtures and equipment or other
personal property from any cause.
9. Unless expressly permitted by LESSOR, LESSEE shall not place or allow
anything to be against or near the glass of partitions or doors of said
PREMISES, or be unsightly from halls, corridors, or exterior of the BUILDING.
10. Unless expressly permitted by LESSOR, no additional locks or similar
devices shall be attached to any door or window and no keys other than those
provided by LESSOR shall be made for any door. If more than two keys for one
lock are desired by LESSEE, LESSOR shall provide the same upon payment
thereafter by LESSEE. LESSEE shall obtain keys from LESSOR only and from no
other source. Upon termination of this LEASE or of LESSEE'S possession, LESSEE
shall surrender all keys of said PREMISES and shall provide LESSOR with the then
current combination for any combination locks on safes, cabinets and vaults.
11. LESSEE shall not make or permit any noise or odor that is objectionable to
LESSOR or to other occupants of the BUILDING to emanate from said PREMISES, and
shall not create or maintain a nuisance therein, and shall not disturb, solicit
or canvass any occupant of the BUILDING, and shall not do any act tending to
injure the reputation of the BUILDING. LESSEE shall not install or operate any
phonograph, musical instrument, radio or television receiver or similar device
in the BUILDING without prior approval of LESSOR. The use thereof, if
permitted, shall be subject to control by LESSOR to the end that others shall
not be disturbed or annoyed.
12. LESSEE shall not overload any floor. LESSOR may, but shall not be required
to, direct the routing and placement of safes and other heavy articles. Safes,
furniture and all large articles shall be brought into said PREMISES or removed
therefrom at the LESSEE'S sole risk and responsibility.
13. LESSEE shall not place or permit to be placed any article of any kind on
the window ledges or elsewhere on the exterior walls.
14. No electrical wires, telegraphs, telegraph call boxes, antennae, aerial
wires or other electrical equipment or apparatus shall be installed inside or
outside of the BUILDING without the consent of LESSOR.
15. LESSOR reserves the right, but shall not be held obligated, to exclude or
eject from the BUILDING any or all solicitors, canvassers or peddlers, and any
persons conducting themselves in such manner as, in the sole judgment of
LESSOR, constitutes an annoyance to any of the tenants of the BUILDING, or an
interference with LESSOR'S operation of the BUILDING, or who are otherwise
undesirable.
16. No article hazardous on the account of fire and no explosive shall be
brought into said PREMISES or into the BUILDING. The storage and use of all
flammable and volatile materials or substances shall be in conformity with
applicable law, rules and regulations of all duly constituted public
authorities.
17. The PREMISES hereby leased shall not be used for lodging or sleeping
purposes or for any immoral or illegal purpose, and no cooking of food shall be
done therein.
18. The sidewalks, entrances, passages, courts, vestibules, stairways,
corridors or halls shall not be obstructed or encumbered by any tenant or used
for any purpose other than ingress and egress to and from the PREMISES.
19. No curtains, blinds, shades or screens shall be attached to or hung in,
or used in connection with, any window or door of the PREMISES, except as
specified by LESSOR.
20. The sashes, sash doors, skylights, windows and doors that reflect or admit
light and air into the halls, passageways or other public places in the
BUILDING shall not be covered or obstructed by any tenant.
21. The water, wash closets and plumbing fixtures shall not be used for any
purposes other than those for which constructed. No sweepings, rubbish, rags or
other substances shall be thrown therein. No person shall waste water by tying
back or wedging the faucets, or in any other manner. All damage resulting from
misuse of fixtures shall be borne by LESSEE who, or whose servants, employees,
agents, visitors or licensees, shall have caused the same.
19
22. If any tenant desires telegraphic, telephonic or other electrical
connections, LESSOR or its agents will direct the electricians as to where and
how the wires may be introduced and without such directions, no boring or
cutting for wires will be permitted. Any such installation and connection shall
be made at LESSEE'S expense, and in firm compliance with codes.
23. Except as permitted by LESSOR, LESSEE shall not mark upon, paint signs
upon, cut, drill into, drive nails or screws into, or in any way deface the
walls, ceilings, partitions or floors of the PREMISES or of the BUILDING. Any
defacement, damage or injury caused by TENANT, its agents or employees, shall
be at LESSEE'S expense.
24. LESSEE shall not lay linoleum, or other similar floor covering, so that
the same shall come in direct contact with the floor of the PREMISES without
the prior approval of LESSOR, and, if linoleum or other similar floor covering
is desired to be used, an interlining of builder's deadening felt shall be
first affixed to the floor, by a paste or other material, soluble in water, the
use of cement or other similar adhesive material being expressly prohibited.
25. Unless approved by LESSOR in written form, no space in the BUILDING shall
be used for manufacturing.
26. No tenant shall throw anything out of the doors, windows, skylights, or
down the passageways, courts, elevator shafts, ventilating ducts or shafts of
the BUILDING.
27. The requirements of tenants will be attended to only upon application to
the office of the LESSOR. Employees of the LESSOR shall not perform any work or
do anything outside of their regular duties, unless under special instructions
from the LESSOR.
28. The installation and use of a vending machine in the BUILDING is
prohibited without the LESSOR'S consent in writing.
29. LESSEE shall not employ any person or persons other than the janitor of
the LESSOR for the purpose of cleaning or taking care of the PREMISES without
the consent of LESSOR. LESSOR shall be in no ways responsible to LESSEE for any
loss of property from the PREMISES, however occurring, or for any damage done
to LESSEE'S furniture or equipment by the janitor or any of his staff or by any
other person or persons whomsoever.
30. Any painting or decorating as may be agreed to be done by and at the
expense of LESSOR shall be done during regular working hours. Should LESSEE
desire such work done on Sunday, holidays or outside of regular working hours,
LESSEE shall pay for the extra cost thereof.
31. In case of invasion, mob, riot, public excitement or other commotion, the
LESSOR reserves the right to prevent access to the BUILDING during the
continuance of same by closing the doors or otherwise, for the safety of the
tenants and protection of the property in the BUILDING.
32. Conduit required by Building Department codes and rulings for LESSEE's
telephone and other installations in the return air plenum suspended ceiling
shall be paid for by the LESSEE.
The LESSOR at all times shall have the right to amend, modify or waive any of
the foregoing rules and regulations and to make such other and further rules
and regulations as the LESSOR may adopt.
The failure of the LESSOR to seek redress for violation of, or insist upon the
strict performance of, any covenant or conditions of this LEASE or any of the
rules and regulations set forth above or hereafter adopted by LESSOR, shall not
prevent a subsequent act, which would have originally constituted a violation,
from having all the force and effect of an original violation. The receipt by
LESSOR of rent with knowledge of the breach of any covenant of this LEASE or
breach of these rules and regulations shall not be deemed a waiver of such
breach. The failure of LESSOR to enforce any of these rules and regulations as
set forth above or hereafter adopted against LESSEE and/or any other tenant in
the BUILDING shall not be deemed a waiver of any such rules and regulations.
LESSOR shall not be liable to LESSEE for violation of any said rules and
regulations or the breach of any covenant or condition in any LEASE by any
other tenant in the BUILDING.
No act or thing done or omitted to be done by LESSOR or LESSOR'S agent during
the term of the LEASE which is necessary to enforce these rules and regulations
shall constitute an eviction by LESSOR nor shall it be deemed an acceptance or
surrender of said PREMISES, and no agreement to accept such surrender shall be
valid unless in writing signed by LESSOR. No employee of LESSOR or LESSOR's
agent shall have any power to accept the keys of said PREMISES prior to the
termination of the leasehold agreement. The delivery of keys to any employee of
LESSOR or LESSOR's agents shall not operate as a termination of the LEASE or a
surrender of the PREMISES. These rules and regulations shall be binding upon
heirs, successors, representatives and assigns of the LESSEE.