Sample Business Contracts


Texas-Dallas-2322 French Settlement Road Lease - Petula Associates Ltd. and Compass International Services

Lease Forms

  • Start a state-specific lease for the rental of commercial property. Specify the term and rent due, as well as whether the landlord or tenant is responsible for property taxes, insurance, and maintenance and repairs.
  • When a tenant vacates commercial property before the lease term has expired, it may be able to rent the premises to a third party. The tenant would be the sublessor and the third party would be the sublessee. Besides preparing a sublease, both parties will want to review the provisions for assignment or subletting in the original lease agreement between the landlord and the sublessor.
  • Tenants of residential property should prepare a sublease agreement if they are seeking to sublease a room or the entire apartment or house to a third party. All parties should review the original lease agreement to see if there are any restrictions on subletting or assigning the premises.
  • Triple net leases are a type of commercial leases where the tenant has to pay for property taxes, insurance, utilities, and maintenance, in addition to the monthly rent.
  • When renting an office space, tenants should understand the amount of the rent and duration of the lease. Other important terms include whether the space can be subleased, which parties are responsible for maintenance, and whether any furniture and furnishings will be provided.

TRAMMELL CROW COMPANY

COMMERCIAL LEASE AGREEMENT

PETULA ASSOCIATES, LTD.

Landlord

AND

COMPASS INTERNATIONAL SERVICES ("COMPASS")

Tenant



TABLE OF CONTENTS

 
   
  Page No.
1. PREMISES, TERM, AND INITIAL IMPROVEMENTS 1

2.

 

BASE RENT, SECURITY DEPOSIT AND ADDITIONAL RENT

 

1

3.

 

TAXES

 

3

4.

 

LANDLORD'S MAINTENANCE

 

3

5.

 

TENANT'S MAINTENANCE AND REPAIR OBLIGATIONS

 

4

6.

 

ALTERATIONS

 

4

7.

 

SIGNS

 

4

8.

 

UTILITIES

 

5

9.

 

INSURANCE BY TENANT

 

5

10.

 

SUBROGATION

 

6

11.

 

CASUALTY DAMAGE

 

6

12.

 

LIABILITY, INDEMNIFICATION, WAIVER OF SUBROGATION AND NEGLIGENCE

 

6

13.

 

USE

 

7

14.

 

INSPECTION

 

7

15.

 

ASSIGNMENT AND SUBLETTING

 

8

16.

 

CONDEMNATION

 

9

17.

 

SURRENDER OF PREMISES; HOLDING OVER

 

9

18.

 

QUIET ENJOYMENT

 

10

19.

 

EVENTS OF DEFAULT

 

10

20.

 

REMEDIES

 

10

21.

 

LANDLORD'S DEFAULT

 

11

22.

 

MORTGAGES

 

12

23.

 

ENCUMBRANCES

 

12

24.

 

MISCELLANEOUS

 

12

25.

 

NOTICES

 

14

26.

 

HAZARDOUS WASTE

 

15

27.

 

LANDLORD'S LEIN

 

15


LIST OF DEFINED TERMS

 
  Page No.
Affiliate 12
Base Rent 1
Building 1
Building's Structure 3
Claimant 11
Collateral 15
Commencement Date 1
Design Professional B-1
Environmental Law 15
Event of Default 10
Hazardous Substances 15
HVAC System 4
Indemnified Parties 6
Initial Improvements 1
Land 1
Landlord 1
Landlord's Mortgagee 12
Law 12
Laws 12
Lease 1
Loss 7
Mortgage 12
New Premises 13
Operating Expenses 2
Permitted Activities 15
Permitted Materials 15
Plans B-1
Premises 1
Primary Lease 12
Proportionate Share 1
rent 3
Repair Period 6
Security Deposit 1
substantial completion B-1
substantially completed B-1
Taking 9
Taxes 3
Tenant 1
Tenant Party 12
Term 1
Transfer 8
UCC 15
Vacation Date 8

  247,618 Square Feet
2322 French Settlement
Suites #100-300
Dallas, Texas 75237
200170-25 Project #


LEASE AGREEMENT

        This Lease Agreement (this "Lease") is entered into by Petula Associates, Ltd. ("Landlord"), and Compass International Services ("Compass") ("Tenant").

        1.     PREMISES, TERM, AND INITIAL IMPROVEMENTS.

            (a)   Landlord leases to Tenant, and Tenant leases from Landlord, the space depicted on the floor plan attached as Exhibit A-1 (the "Premises"), which is part of the approximately 247,618 square foot building (the "Building") located on the real property described on Exhibit A (the "Land"), subject to the terms and conditions in this Lease. If more than one building is now or hereafter on the Land, then all references to "Building" shall collectively refer to all such buildings unless the context otherwise requires. Landlord and Tenant stipulate that, as of the date of this Lease, the size of the Premises is 247,618 square feet and the size of the Building is 247,618 square feet, and Tenant's "Proportionate Share" is 100%. The Proportionate Share shall be adjusted if the size of the Premises or the Building (including the addition of new buildings on the Land) changes.

            (b)   The Lease term shall be forty-nine (49) months, beginning January 1, 1999 (the "Commencement Date"), and ending January 31, 2003 (the "Term", which defined term shall include all renewals and extensions of the Term); however, if the Commencement Date is not the first day of a calendar month, then the Term shall end forty-nine (49) months after the first day of the first full calendar month of the Term.

            (c)   If an Exhibit B is attached hereto, Landlord shall construct in the Premises the improvements (the "Initial Improvements") described on the plans and specifications referenced on Exhibit B, and, by occupying the Premises, Tenant shall have accepted the Premises in their condition, subject to completion of any punch-list items relating to the Initial Improvements.

            (d)   If an Exhibit B is not attached hereto, then Tenant accepts the Premises in their "AS-IS" condition; Landlord shall have no obligation to perform or pay for any repair or other work therein; and Tenant shall obtain and deliver to Landlord a certificate of occupancy for the Premises from the appropriate governmental authority.

        2.     BASE RENT, SECURITY DEPOSIT AND ADDITIONAL RENT.

            (a)   Tenant shall pay to Landlord "Base Rent", in advance, without demand, deduction or set off, equal to the following amounts for the following periods of time:

Time Period

  Monthly Base Rent
January 1, 1999 through January 31, 2001 $61,904.50

February 1, 2001 through January 31, 2003

 

$

63,967.98

The first monthly installment, plus the other monthly charges set forth in section 2.(c), shall be due on the date hereof; thereafter, monthly installments of Base Rent shall be due on the first day of each calendar month following the Commencement Date. If the Term begins on a day other than the first day of a month or ends on a day other than the last day of a month, the Base Rent and additional rent for such partial month shall be prorated.


Base Rent (Section 2.(a)) $61,904.50
Operating Expenses, excluding Taxes (Section 2.(c)) $10,111.06
(Insurance $412.69; CAM 9,698.37)   
Taxes (Sections 2.(c) and 3.(a)) $10,523.76

Total initial monthly payment

 

$

82,539.32
  

2


        3.     TAXES.

        4.     LANDLORD'S MAINTENANCE.

3


        5.     TENANT'S MAINTENANCE AND REPAIR OBLICATIONS.

        6.     ALTERATIONS. Tenant shall not make any alterations, additions or improvement to the Premises without the prior written consent of Landlord. Landlord shall not be required to notify Tenant of whether it consents to any alteration, addition or improvements until it (a) has received plans and specifications therefor which are sufficiently detailed to allow construction of the work depicted thereon to be performed in a good and workmanlike manner, and (b) has had a reasonable opportunity to review them. If the alteration, addition or improvement will affect the Building's Structure, HVAC System, or mechanical, electrical, or plumbing systems, then the plans and specifications therefor must be prepared by a licensed engineer reasonably acceptable to Landlord. Landlord's approval of any plans and specifications shall not be a representation that the plans or the work depicted thereon will comply with law or be adequate for any purpose, but shall merely be Landlord's consent to performance of the work. Upon completion of any alteration, addition, or improvement, Tenant shall deliver to Landlord accurate, reproducible as-built plans therefor. Tenant may erect shelves, bins, machinery and trade fixtures provided that such items (1) do not alter the basic character of the Premises or the Building; (2) do not overload or damage the same; and (3) may be removed without damage to the Premises. Unless Landlord specifies in writing otherwise, all alterations, additions, and improvements shall be Landlord's property when installed in the Premises. All work performed by a Tenant Party in the Premises (including that relating to the installations, repair, replacement, or removal of any item) shall be performed in accordance with Law and with Landlord's specifications and requirements, in a good and workmanlike manner, and so as not to damage or alter the Building's Structure or the Premises. In connection with any such alteration, addition, or improvement, Tenant shall pay to Landlord an administration fee of 10% of all costs incurred for such work.

        7.     SIGNS. Tenant shall not place, install or attach any signage, decorations, advertising media, blinds, draperies, window treatments, bars, or security installations to the Premises or the Building without Landlord's prior written approval. Tenant shall repair, paint, and/or replace any portion of the Premises or the Building damaged or altered as a result of its signage when it is removed (including, without limitation, any discoloration of the Building). Tenant shall not (a) make any changes to the exterior of the Premises or the Building, (b) install any exterior lights, decorations, balloons, flags, pennants, banners or paintings, or (c) erect or install any signs, windows or door lettering, decals, window or storefront stickers, placards, decorations or advertising media of any type that is visible from he exterior of the Premises without Landlord's prior written consent. Landlord shall not be required to

4



notify Tenant of whether it consents to any sign until it (1) has received detailed, to-scale drawings thereof specifying design, material composition, color scheme, and method of installation, and (2) has had a reasonable opportunity to review them.

        8.     UTILITIES. Tenant shall obtain and pay for all water, gas, electricity, heat, telephone, sewer, sprinkler charges and other utilities and services used at the Premises, together with any taxes, penalties, surcharges, maintenance charges, and the like pertaining to the Tenant's use of the Premises. Landlord may, at Tenant's expense, separately meter and bill Tenant directly for its use of any such utility service, in which case, the amount separately billed to Tenant for Building-standard utility service shall not be duplicated in Tenant's obligation to pay additional rent under Section 2.(c). Landlord shall not be liable for any interruption or failure of utility service to the Premises. All amounts due from Tenant under this Section 8 shall be payable within ten days after Landlord's request therefor.

        9.     INSURANCE BY TENANT. Tenant shall, during the Lease Term, procure at its expense and keep in force the following insurance:

The policies required to be maintained by Tenant shall be with companies rated AX or better in the most current issue of Best's Insurance Reports. Insurers shall be licensed to do business in the state in which the Premises are located and domiciled in the USA. [Any deductible amounts under any insurance policies required hereunder shall not exceed $100,000.] Certificates of insurance [(certified copies of the policies may be required)] shall be delivered to Landlord prior to the commencement date and annually thereafter at least thirty (30) days prior to the expiration date of the old policy. Tenant shall have the right to provide insurance coverage which it is obligated to carry pursuant to the terms hereof in a blanket policy, provided such blanket policy expressly affords coverage to the Premises and to Landlord as required by this Lease. Each policy of insurance shall provide notification to Landlord at least thirty (30) days prior to any cancellation or modification to reduce the insurance coverage.

[In the event Tenant does not purchase the insurance required by this Lease or keep the same in full force and effect, Landlord may, but shall not be obligated to purchase the necessary insurance and pay

5



the premium. The Tenant shall pay to Landlord, as additional rent, the amount so paid promptly upon demand. In addition, Landlord may recover from Tenant and Tenant agrees to pay, as additional rent, any and all reasonable expenses (including attorneys' fees) and damages which Landlord may sustain by reason of the failure of Tenant to obtain and maintain such insurance.]

        10.   SUBROGATION. Landlord and Tenant hereby mutually waive their respective rights of recovery against each other for any loss of, or damage to, either parties' property, to the extent that such loss or damage is insured by an insurance policy required to be in effect at the time of such loss or damage. Each party shall obtain any special endorsements, if required by its insurer whereby the insurer waives its rights of subrogation against the other party. The provisions of this clause shall not apply in those instances in which waiver of subrogation would cause either party's insurance coverage to be voided or otherwise made uncollectible.

        11.   CASUALTY DAMAGE.

        12.   LIABILITY, INDEMNIFICATION, WAIVER OF SUBOGATION AND NEGLIGENCE.

6


        13.   USE.

        14.   INSPECTION. Landlord and Landlord's agents and representatives may enter the Premises during business hours to inspect the Premises; to make such repairs as may be required or permitted under this Lease; to perform any unperformed obligations of Tenant hereunder; and to show the Premises to prospective purchasers, mortgagees, ground lessons, and (during the last 12 months of the Term) tenants. During the last 12 months of the Term, Landlord may erect a sign on the Premises indicating that the Premises are available. Tenant shall notify Landlord in writing of its intention to

7


vacate the Premises at least 60 days before Tenant will vacate the Premises; such notice shall specify the date on which Tenant intends to vacate the Premises (the "Vacation Date"). At least 30 days before the Vacation Date, Tenant shall arrange to meet with Landlord for a joint inspection of the Premises. After such inspection, landlord shall prepare a list of items that Tenant must perform before the Vacation Date shall be conclusive. If Tenant fails to perform such work before the Vacation Date, the Landlord may perform such work at Tenant's cost. Tenant shall pay all costs incurred by Landlord in performing such work within ten days after landlord's request therefor.

        15.   ASSIGNMENT AND SUBLETTING.

8


        16.   CONDEMNATION. If more than 50% of the Premises is taken for any public or quasi-public use by right of eminent domain or private purchase in lieu thereof (a "Taking"), and the Taking prevents or materially interferes with the use of the remainder of the Premises for the purpose for which they were leased to Tenant, either party may terminate this Lease by delivering to the other written notice thereof within 30 days after the Taking, in which case rent shall be abated during the unexpired portion of the Term, effective on the date of such Taking. If (a) less than 50% of the Premises are subject to a Taking, (b) more than 50% of the Premises are subject to a Taking, but the Taking does not prevent or materially interfere with the use of the remainder of the Premises for the purpose for which they were leased to Tenant, then neither party may terminate this Lease, but the rent payable during the unexpired portion of the Term shall be reduced to such extent as may be fair and reasonable under the circumstances. All compensation awarded for any Taking shall be the property of Landlord and Tenant assigns any interest it may have in any such award to Landlord; however, Landlord shall have no interest in any award made to Tenant for loss of business or goodwill or for the taking of Tenant's trade fixtures, if a separate award for such items is made to Tenant.

        17.   SURRENDER OF PREMISES; HOLDING OVER.

9


        18.   QUIET ENJOYMENT. Provided Tenant has fully performed its obligations under this Lease, Tenant shall peaceably and quietly hold and enjoy the Premises for the Term, without hindrance from Landlord or any party claiming by, through, or under Landlord, but not otherwise.

        19.   EVENTS OF DEFAULT. Each of the following events shall constitute an "Event of Default" under this Lease:

        20.   REMEDIES.

10


Additionally, without notice, Landlord may alter locks or other security devices at the Premises to deprive Tenant of access thereto, and Landlord shall not be required to provide a new key or right of access to Tenant.

        21.   LANDLORD'S DEFAULT. If Landlord fails to perform any of its obligations hereunder within 30 days after written notice from Tenant specifying such failure, Tenant's exclusive remedy shall be an action for damages. Unless Landlord fails to so cure such default after such notice, Tenant shall not have any remedy or cause of action by reason thereof. Liability of Landlord to Tenant for any default

11


by Landlord, shall be limited to actual, direct, but not consequential, damages thereof and shall be recoverable only from the interest of Landlord in the Building and the Land, and neither Landlord nor Landlord's owners shall have any personal liability therefor.

        22.   MORTGAGES.

        23.   ENCUMBRANCES. Tenant has no authority, express or implied, to create or place any lien or encumbrance of any kind or nature whatsoever upon, or in any manner to bind Landlord's property or the interest of Landlord or Tenant in the Premises or to charge the rent for any claim in favor of any person dealing with Tenant, including those who may furnish materials or perform labor for any construction or repairs. Tenant shall pay or cause to be paid all sums due for any labor performed or materials furnished in connection with any work performed on the Premises by or at the request of Tenant. Tenant shall give Landlord immediate written notice of the placing of any lien or encumbrance against the Premises.

        24.   MISCELLANEOUS.

12


13


        25.   NOTICES. Each provision of this instrument or of any applicable Laws and other requirements with reference to the sending, mailing or delivering of notice or the making of any payment hereunder shall be deemed to be complied with when and if the following steps are taken:

14


        26.   HAZARDOUS WASTE. The term "Hazardous Substances," as used in this Lease shall mean pollutants, contaminants, toxic or hazardous wastes, or any other substances, the removal of which is required or the use of which is restricted, prohibited or penalized by any "Environmental Law," which term shall mean any Law relating to health, pollution, or protection of the environment. Tenant hereby agrees that (a) no activity will be conducted on the Premises that will produce any Hazardous Substances, except for such activities that are part of the ordinary course of Tenant's business activities (the "Permitted Activities") provided such Permitted Activities are conducted in accordance with all Environmental Laws and have been approved in advance in writing by Landlord; (b) the Premises will not be used in any manner for the storage of any Hazardous Substances except for any temporary storage of such materials that are used in the ordinary course of Tenant's business (the "Permitted Materials") provided such Permitted Materials are properly stored in a manner and location satisfying all Environmental Laws and approved in advance in writing by Landlord; (c) no portion of the Premises will be used as a landfill or a dump; (d) Tenant will not install any underground tanks of any type; (e) Tenant will not allow any surface or subsurface conditions to exist or come into existence that constitute, or with the passage of time may constitute a public or private nuisance; and (f) Tenant will not permit any Hazardous Substances to be brought onto the Premises, except for the Permitted Materials, and if so brought or found located thereon, the same shall be immediately removed by Tenant, with proper disposal, and all required cleanup procedures shall be diligently undertaken pursuant to all Environmental Laws. If at any time during or after the Term, the Premises are found to be so contaminated or subject to such conditions, Tenant shall defend, indemnify and hold Landlord harmless from all claims, demands, actions, liabilities, costs, expenses, damages and obligations of any nature arising from or as a result of the use of the Premises by Tenant. Unless expressly identified on an addendum to this Lease, as of the date hereof there are no "Permitted Activities" or "Permitted Materials" for purposes of the foregoing provision and none shall exist unless and until approved in writing by the Landlord. Landlord may enter the Premises and conduct environmental inspections and tests therein as it may require from time to time, provided that Landlord shall use reasonable efforts to minimize the interference with Tenant's business. Such inspections and tests shall be conducted at Landlord's expense, unless they reveal the presence of Hazardous Substances (other than Permitted Materials) or that Tenant has not complied with the requirements set forth in this Section 26, in which case Tenant shall reimburse Landlord for the cost thereof within ten days after Landlord's request therefor.

        27.   LANDLORD'S LIEN. In addition to the statutory landlord's lien, Tenant grants to Landlord, to secure performance of Tenant's obligations hereunder, a security interest in all goods, inventory, equipment, fixtures, furniture, improvements, chattel paper, accounts, and general intangibles, and other personal property Tenant now or hereafter situated on or relating to Tenant's use of the Premises, and all proceeds therefrom (the "Collateral"), and the Collateral shall not be removed from the Premises without the consent of Landlord until all obligations of Tenant have been fully performed. Upon the occurrence of an Event of Default, Landlord may, in addition to all other remedies, without notice or demand except as provided below, exercise the rights afforded a secured party under the Uniform Commercial Code of the State in which the Building is located (the "UCC"). In connection with any public or private sale under the UCC, Landlord shall give Tenant five-days' prior written notice of the time and place of any public sale of the Collateral or of the time after which any private sale or other intended disposition thereof is to be made, which is agreed to be a reasonable notice of

15



such sale or other disposition. Tenant grants to Landlord a power of attorney to execute and file any financing statement or other instrument necessary to perfect Landlord's security interest under this Section 27, which power is coupled with an interest and is irrevocable during the Term. Landlord may also file a copy of this Lease or this provision as a financing statement to perfect its security interest in the Collateral.

        TENANT ACKNOWLEDGES THAT (1) IT HAS INSPECTED AND ACCEPTS THE PREMISES IN AN "AS IS, WHERE IS" CONDITION, (2) THE BUILDINGS AND IMPROVEMENTS COMPRISING THE SAME ARE SUITABLE FOR THE PURPOSE FOR WHICH THE PREMISES ARE LEASED AND LANDLORD HAS MADE NO WARRANTY, REPRESENTATION, COVENANT, OR AGREEMENT WITH RESPECT TO THE MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF THE PREMISES, (3) THE PREMISES ARE IN GOOD AND SATISFACTORY CONDITION, (4) NO REPRESENTATIONS AS TO THE REPAIR OF THE PREMISES, NOR PROMISES TO ALTER, REMODEL OR IMPROVE THE PREMISES HAVE BEEN MADE BY LANDLORD (UNLESS AND EXCEPT AS MAY BE SET FORTH IN EXHIBIT B ATTACHED TO THIS LEASE, IF ONE SHALL BE ATTACHED, OR AS IS OTHERWISE EXPRESLY SET FORTH IN THIS LEASE), AND (5) THERE ARE NO REPRESENTATIONS OR WARRANTIES, EXPRESSED, IMPLIED OR STATUTORY, THAT EXTEND BEYOND THE DESCRIPTION OF THE PREMISES.

        Executed by Tenant on August 19, 1998.


 

 

TENANT:

 

 

COMPASS INTERNATIONAL SERVICES ("COMPASS")

 

 

By:

 

/s/ Michael J. Cunningham
  Name: Michael J. Cunningham
  Title: Chairman and CEO
  Address:   
  
  

 

 

Telephone:

 

  
  Fax:   

16


        Executed by Landlord on August 28, 1998.


 

 

LANDLORD:
  PETULA ASSOCIATES, LTD.

 

 

By:

 

/s/ R.L. Minear
  Name: R.L. Minear
  Title: Vice President
  By: /s/ Steve W. Pick
  Name: Steve W. Pick
  Title: Vice President

 

 

Address:

 

C/O Trammell Crow Dallas/Fort Worth
2200 Ross Avenue, Suite 3700
Dallas, TX 75201

 

 

Telephone:

 

  
  Fax:   

17



RIDER ONE

        28.   NO OFFER. The submission of this Lease to Tenant shall not be construed as an offer to enter into this Lease. Tenant shall have no rights under this Lease or in or to the Premises, unless and until Landlord has executed a copy of this Lease and delivered it to Tenant.

        29.   CONTINGENCY. This Lease is solely contingent upon FootStar Corporation (successor in interest to FootAction, Inc.) entering into a fully executed Termination Agreement with Petula Associates, Ltd, in which FootStar agrees to vacate the premises on or before midnight, December 31, 1998.

        30.   TENANT IMPROVEMENTS. Landlord agrees to provide Tenant Improvements to Tenant consisting of new paint and carpet to all existing office areas of the Premises.

        31.   SECURITY SYSTEM. Tenant will gain possession and ownership of all security system equipment located inside the Premises which is currently owned by the previous Tenant (FootStar Corporation, successor in interest to FootAction, Inc.) and more specifically described on Exhibit "B-1".

18



EXHIBIT A
LEGAL DESCRIPTION

        2322 French Settlement Road
Turnpike Distribution Center #25

BEING approximately 247,618 square feet out of a 247,618 square foot building situated on a tract of land and further described as follows:

        Tract 1

BEING a tract of land out of the Thomas Cheshire Survey, Abstract No. 251 and the Thacker V. Griffin Survey, Abstract No. 511, and being part of a tract of land conveyed to Trammell Crow Company No. 60 and Petula Associates, Ltd. by Deed recorded in Volume 84064, Page 147; of the Deed Records of Dallas County, Texas and also being a portion of Block E/7218 of proposed Turnpike Distribution Center Phase III (Vol. 85167 Page 5066) and being more particularly described as follows;

BEGINNING at the intersection of the east right-of-way line of proposed French Settlement Road (right-of-way varies) and the south right-of-way line of the Texas & Pacific Railroad (125 foot right-of-way);

THENCE North 76° 01' 30" East, along the south right-of-way line of said Texas & Pacific Railroad, a distance of 912.00 feet to a point for a corner;

THENCE South 13° 58' 30" East, departing south right-of-way line, a distance of 46.68 feet to a point for a corner;

THENCE South 6° 24' 30" West, a distance of 285.97 feet to a point for a corner, said point lying on the west right-of-way line of St. Germain Road (140 foot right-of-way);

THENCE South 2° 06' 30" East, a distance of 208.97 feet to a point for a corner;

THENCE South 76° 01' 30" West, a distance of 897.42 Feet to a point for a corner, said line being parallel to the north plat line of Turnpike Distribution Center;

THENCE South, a distance of 36.72 feet to a point for a corner;

THENCE South 75° 56' 00" West, a distance of 82.47 feet to a point for a corner;

THENCE North, a distance of 16.25 feet to a point for a corner;

THENCE South 76° 01' 30" West, a distance of 161.43 feet to a point for a corner lying on a circular curve to the left having a central angle of 55° 43' 57", a radius of 532.00 feet and whose back tangent bears South 55° 43' 57" West, said point also lying on the east right-of-way line of said French Settlement Road;

THENCE the following bearings and distances along the east right-of-way line of said French Settlement Road;

Northeasterly along said circular curve to the left, an arc distance of 517.48 feet to a point for a point of tangency;

North, a distance of 81.92 feet to a point for a corner;

North 5° 02' 33" East, a distance of 34.13 feet to a point for a corner;

North, a distance of 58.71 feet to the POINT OF BEGINNING AND CONTAINING 495,425 square feet or 11.373 acres of land, more or less.

        Tract 2

BEING a tract of land out of the Thomas Chesire Survey, Abstract No. 251 and the Thacker V. Griffin Survey, Abstract No. 511, and being part of a tract of land conveyed to Trammell Crow Company No. 60 and Petula Associates, Ltd. by Deed recorded in Volume 84064, Page 147; of the Deed Records



of Dallas County, Texas and also being a portion of Block E/7218 of Turnpike Distribution Center Phase III, Volume 85167, Page 5066 rand being more particularly described as follows;

BEGINNING at the southeasterly corner of Turnpike Distribution Center, phase III (Volume 85167, Page 5066) said corner also lying on the north line of Turnpike Distribution Center (Volume 77091, Page 31213);

THENCE South 76° 01' 30" West along the south line of said Turnpike Distribution Center, Phase III, a distance of 1297.94 feet to a point for a corner lying on the east right-at-way line of French Settlement Road (64' right-of-way);

THENCE the following bearings and distances along the east right-of-way line of French Settlement Road:

THENCE North 76° 01' 30" East departing said east right-of-way line, a distance of 161.43 feet to a point for a corner;

THENCE South, a distance of 16.25 feet to a point for a corner;

THENCE North 75° 56' 00" East, a distance of 82.47 feat to a point for a corner;

THENCE North, a distance of 36.72 feet to a point for a corner;

THENCE North 76° 01' 30" East, a distance of 897.42 feet to a point for a corner lying on the west right-of-way line of St. Germain Road (140 feet right-of-way);

THENCE South 2° 06' 30" East along said west right-of-way line, a distance of 60.89 feet to the POINT OF BEGINNING AND CONTAINING 64,792 square feet or 1.487 acres of land, more or less.


GRAPHIC


FIRST AMENDMENT TO LEASE AGREEMENT

        This First Amendment to Lease is made and entered into this            day of            , 1998 between Petula Associates, Ltd. ("Landlord") and Compass International Services, Inc. ("Compass"), ("Tenant"), for the purpose of amending the lease agreement between Landlord and Tenant, dated August 28, 1998 (as amended, the "Lease"). Unless otherwise specified herein, all capitalized terms used herein shall have the meanings assigned to them in the Lease.


RECITALS

        Tenant desires to extend the term of the Lease (the "Term") for a period of Seventy-One (71) months, and Landlord has agreed to such extension on the terms and conditions contained herein.


AGREEMENTS

        For valuable consideration, whose receipt and sufficiency are acknowledged, Landlord and Tenant agree as follows:

        1.    Extension of Term.    The Term is hereby extended such that it expires at 5:00 p.m., Dallas, Texas time, on December 31, 2008, rather than January 31, 2003, on the terms and conditions of the Lease, as modified hereby. Tenant shall have no further rights to extend or renew the Term.

        2.    Base Rent.    As delineated in paragraph 2(a) of the Lease, Tenant shall pay to Landlord "Base Rent", in advance, without demand, deduction or set off, equal to the following amended amounts for the following periods of time: January 1, 1999 through January 31, 2001, the monthly Base Rent shall be Sixty-one Thousand Nine Hundred Four and 50/100 Dollars ($61,904.50); February 1, 2001 through January 31, 2003, the monthly Base Rent shall be Sixty-three Thousand Nine Hundred Sixty-seven and 98/100 Dollars ($63,967.98); and February 1, 2003 through December 31, 2008, the monthly Base Rent shall be Sixty-nine Thousand Seven Hundred Twenty-four and 00/100 Dollars ($69,724.00).

        3.    Tenant Improvements.    Landlord agrees to provide pinwelded insulation in 136,000 square feet of the warehouse area to create a R-19 insulation factor.

        4.     Paragraph 27 of the Lease is hereby deleted.

        5.     Paragraph 24(g) of the Lease is hereby deleted.

        6.    Ratification.    Tenant hereby ratifies and confirms all other obligations under the Lease, and represents and warrants to Landlord that it has no defenses thereto.

        7.    Binding Effect; Governing Law.    Except as modified hereby, the Lease shall remain in full effect and this Amendment shall be binding upon Landlord and Tenant and their respective successors and assigns. This Amendment shall be governed by Texas law. All other terms and conditions of the Lease shall remain in full force and effect and the Lease as hereby amended is ratified and affirmed.



        IN WITNESS WHEREOF the parties hereto have signed and sealed this Amendment Agreement this 22nd day of December, 1998.


 

 

Petula Associates, Ltd.

 

 

By:

 

/s/ Vance Voss
  Name: Vance Voss
  Title: Vice President

 

 

By:

 

/s/ Michael D. Ripson
  Name: Michael D. Ripson
  Title: Vice President

 

 

Compass International Services, Inc.

 

 

By:

 

 
    
  Name:  
    
  Title:  
    

SECOND AMENDMENT TO LEASE AGREEMENT

        This Second Amendment to Lease Agreement (the "Agreement") is made and entered into this 1st day of August, 1999, by and between Petula Associates, Ltd. ("Landlord") and Mail Box Capital Corporation ("Tenant") for the purpose of amending the lease agreement between Landlord and Tenant, dated August 28, 1998, as amended by that certain First Amendment to Lease Agreement dated December 22, 1998 (collectively the "Lease") covering the premises described therein as approximately 247,618 rentable square feet of space located at 2322 French Settlement, Suites 100-300, Dallas, Texas 75237. Unless otherwise specified herein, all capitalized terms used herein shall have the meanings assigned to them in the Lease.


RECITALS

        Tenant desires to extend the term of the Lease (the "Term") for a period of One Hundred Twenty, (120) months commencing August 1, 1999, and Landlord has agreed to such extension on the terms and conditions contained herein.


AGREEMENTS

        For valuable consideration, whose receipt and sufficiency are acknowledged, Landlord and Tenant agree as follows:

$61,904.50 8/01/1999 through 8/31/2001
$63,967.98 9/01/2001 through 8/31/2003
$69,724.00 9/01/2003 through 7/31/2009

        IN WITNESS WHEREOF, the parties hereto have signed this Second Amendment to Lease Agreement this    day of August, 1999.

        [Signatures Appear on Next Page]



 

 

Petula Associates, Ltd.

 

 

By:

 

 
    
  Name:  
    
  Title:  
    

 

 

By:

 

 
    
  Name:  
    
  Title:  
    

 

 

Mail Box Capital Corporation,
a Delaware corporation

 

 

By:

 

 
    
  Name:  
    
  Title:  
    


EXHIBIT B

        Landlord shall diligently perform the work described in Paragraph 30 of the Rider portion of this Lease; however, if Landlord is unable to substantially complete such work by the Commencement Date set forth in Section 1.(b) of this Lease, then Landlord shall not be liable for damages therefor and Tenant shall accept possession of the Premises when Landlord tenders possession thereof to Tenant in a substantially completed condition and, except as provided below, (a) Tenant's obligation to pay Base Rent and additional rent under Section 2.(c) of this Lease shall be waived until Landlord tenders possession of the Premises to Tenant in a substantially completed condition, and (b) the Term shall be extended by the number of days in the period beginning with the Commencement Date set forth in Section 1.(b) of this Lease and ending on the date Landlord tenders possession of the Premises to Tenant (which date will then be the "Commencement Date").

        The term "substantial completion" or "substantially completed" shall mean that, in the opinion of the contractor performing the work, the Initial Improvements have been completed substantially, subject to completion of minor punch list items. As soon as the Initial Improvements have been substantially completed, Landlord shall notify Tenant in writing that the Commencement Date has occurred. Within ten days thereafter, Tenant shall submit to Landlord in writing a punch list of items needing completion or correction, Landlord shall use commercially reasonable efforts to complete such items within 30 days alter it receives such notice. If Tenant or its employees, agents or contractors delay completion of the Initial Improvements, then the Commencement Date shall be the date that, in the contractor's opinion, substantial completion would have occurred had such delays not occurred.



EXHIBIT C

WAIVER OF RIGHTS UNDER THE
DECEPTIVE TRADE PRACTICES—CONSUMER PROTECTION ACT

        Pursuant to, and to the extent permitted by Section 17.42 of the Texas Deceptive Trade Practices—Consumer Protection Act (Tex. Bus. & Com. Code Ann. §17.41, et. Seq.), Landlord and Tenant hereby agree that the Texas Deceptive Trade Practices—Consumer Protection Act is waived and shall have no applicability to this Lease, excerpt that such waiver shall not apply to Section 17.555 of such Act.

  LANDLORD:

 

 

PETULA ASSOCIATES, LTD.

 

 

By:

/s/  R.L. MINEAR      
  Name:R.L. Minear
  Title:Vice President

 

 

By:

/s/  STEVE W. PICK      
  Name:Steve W. Pick
  Title:Vice President

 

 

TENANT:

 

 

COMPASS INTERNATIONAL SERVICES ("COMPASS")

 

 

By:

/s/  MICHAEL J. CUNNINGHAM      
  Name:Michael J. Cunningham
  Title:Chairman and CEO

 

 

TENANT'S LEGAL COUNSEL:

 

 

By:

 
   
  Name: 
   
  Title: 
   

LANDLORD'S SUBORDINATION AGREEMENT

        WHEREAS, Petula Associates, Ltd. (hereinafter referred to as "Landlord") is the owner lessor of the following building/premises (hereinafter referred to as "Premises") which are leased to the following tenant (hereinafter referred to as "Tenant") pursuant to that certain lease executed by and between Landlord and Tenant on or about the 18th day of August, 1999, as may have been amended from time to time (hereinafter referred to as the "Lease").

Building/Premises
Address: 2322 French Settlement, Suites 100-300
Dallas, Texas 75237
Tenant: Mail Box Capital Corporation

        WHEREAS, there has been or will be stored or installed in the Premises certain personal property (hereinafter referred to as the "Personal Property") all as more specifically described on Exhibit "A" which is attached hereto and made a part hereof; and

        WHEREAS, to secure Tenant's obligation to pay certain indebtedness and other liabilities now or hereafter owing pursuant to that certain Loan and Security Agreement dated on or about August 18, 1999, by and among, Fleet Capital Corporation, as agent ("Agent") for all lenders from time to time party to such Loan and Security Agreement ("Lenders"), Lenders, and Tenant (as the Loan and Security Agreement may from time to time be amended, modified, renewed, extended, restated, refinanced or replaced, the "Loan and Security Agreement"), a security interest in, the Personal Property has been or will be obtained by or has been or will be transferred, conveyed or assigned by Tenant to Agent for the benefit of Lenders pursuant to the Loan and Security Agreement.

        NOW THEREFORE, for and in consideration of the covenants contained herein, it is hereby agreed as follows:

1.
Except as limited in this Agreement, Landlord subordinates any and all liens, claims or other rights which Landlord may now or hereafter have in or to the Personal Property of Tenant now or hereafter located in or on the Premises (regardless of whether such Personal Property is now owned or hereafter acquired by Tenant) including, without limitation, all of Tenant's Personal Property set forth on Exhibit "A," by virtue of the Lease or which may arise by operation of law, equity or otherwise to all security interest or liens now or hereafter securing all indebtedness, liabilities and obligations now or hereafter owing pursuant to the Loan and Security Agreement or any guaranty thereof.

2.
Landlord and Agent hereby agree that Landlord's consent and execution of this Subordination Agreement shall not, however, be effective as a consent under Section 9.313 of the Texas Business and Commerce Code to subordinate Landlord's interest in fixtures to that of Agent and/or Lenders. In no event shall Lender cause to be recorded any financing statements, Uniform Commercial Code filings or their equivalents in connection with this Agreement which affect or otherwise impair title to Landlord's fixtures and real or personal property located on the Premises.

3.
By reason of this Agreement, the liens and security interests in favor of the Agent for the benefit of Lenders in the Personal Property shall be senior and superior to any and all liens and security interests now or hereafter encumbering all or any portion of the Personal Property as security for all or any portion of the indebtedness, liabilities or obligations now or hereafter owing by Tenant to Landlord. Until all of the indebtedness, liabilities and obligations of Tenant to Agent and Lenders pursuant to the Loan and Security Agreement or any guaranty thereof is indefeasibly paid in full and the Loan and Security Agreement terminated, the Landlord shall not, without the Agent's prior written consent, (i) take any action to foreclose or otherwise enforce any liens or

Signed this 18th day of August, 1999 LANDLORD:

 

 

PETULA ASSOCIATES, LTD.

 

 

By:

/s/  VANCE VOSS      
  Name:Vance Voss
  Title:Vice President

 

 

By:

/s/  THOMAS R. POSPISIL      
  Name:Thomas R. Pospisil
  Title:Counsel

Signed this            day of August, 1999.

 

TENANT:

 

 

MAIL BOX CAPITAL CORPORATION
a Delaware corporation

 

 

By:

 
   
  Name: 
   
  Title: 
   

Signed this            day of August, 1999.

 

AGENT:

 

 

FLEET CAPITAL CORPORATION,
a Rhode Island corporation

 

 

By:

 
   
  Name:Larry Trussell
  Title:Vice President


EXHIBIT "A"
TO
LANDLORD'S SUBORDINATION AGREEMENT

The Personal Property includes the following which has been or will be stored or installed in the Premises:

        "Account Debtor"— with respect to any Person, any other Person who is or may become obligated under or on account of an Account of Tenant owing to such Person.

        "Accounts"— with respect to any Person, all accounts, accounts receivable, contract rights, including without limitation rights under contracts for the purchase of supplies (in any such case to the extent a security interest can be granted in particular contracts) instruments, notes, drafts, acceptances, documents, chattel paper, any right of to payment for goods sold or leased or for services rendered, whether arising out of the sale of Inventory (as hereinafter defined) or otherwise and whether or not earned by performance, and all other forms of obligations owing to such Person, and all of such Person's rights to any merchandise (including without limitation any returned or repossessed goods and the right of stoppage in transit which is represented by, arises from or is related to any of the foregoing) whether now existing or hereafter arising, and however evidenced or acquired, in which such Person now has or hereafter acquires any interest or rights.

        "Affiliate"— a Person (other than a Subsidiary): (i) which directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, a Person; (ii) which beneficially owns or holds 5% or more of any class of the Voting Securities of a Person; or (iii) 5% or more of the Voting Securities (or in the case of a Person which is not a corporation, 5% or more of the equity interest) of which is beneficially owned or held by a Person or a Subsidiary of a Person. For the purpose of this definition "control" of a Person shall mean the possession, directly or indirectly, of the power to direct or cause the direction of its management policies, whether through the ownership of Voting Securities, by contract or otherwise.

        "Agreement"— that certain Loan and Security Agreement dated August     , 1999 among Tenant and Agent.

        "Equipment"— with respect to any Person, all machinery, apparatus, equipment, fittings, furniture, fixture, motor vehicles and other tangible personal property (other than Inventory) of every kind and description used in the operations of such Person or owned by such Person or in which such Person has an interest, whether now owned or hereafter acquired by such Person and wherever located, and all



parts, accessories and special tools and all increases and accessions thereto and substitutions and replacements therefor.

        "Equity Interest" means (i) with respect to a corporation, any and all capital stock or warrants, options or other rights to acquire capital stock and (ii) with respect to a partnership, limited liability company or similar Person, any and all units, interests, rights to purchase, warrants, options or other equivalents of, or other interests in any such Person.

        "General Intangibles"— with respect to any Person, all general intangibles of such Person, whether now owned or hereafter created or acquired by such Person, including, without limitation, all causes in action, causes of action, corporate or other business records, deposit accounts, inventions, designs, patents, patent applications, trademarks, trade names, trade secretes, goodwill, copyrights, registrations, licenses, franchises, customer lists, tax refund claims, computer programs, all claims under guaranties, security interests of other security held by or granted to such Person to secure payment of any of the Accounts owing to such Person by an Account Debtor, all rights to indemnification and all other intangible property of every kind and nature (other than Accounts owing to such Person).

        "Inventory"— with respect to any Person, all inventory of such Person, whether now owned or hereafter acquired including, but not limited to, all goods intended for sale or lease by such Person, or for display or demonstration; all work in process: all raw materials and other materials and supplies of every nature and description used or which might be used in connection with the manufacture, printing, packing, shipping, advertising, selling, leasing or furnishing of such goods or otherwise used or consumed in such Person's business; and all documents evidencing and General Intangibles relating to any of the foregoing, whether now owned or hereafter acquired by such Person.

        "Investment Property"— with respect to any Person, all of such Person's investment property, whether now owned or hereinafter acquired by such Person, including, without limitation, all securities (certificated or uncertificated), securities accounts, securities entitlements, commodity accounts and contracts.

        "Lien"— any interest to property securing an obligation owed to, or a claim by, a Person other than the owner of the Property, whether such interest is based on common law, statute or contract. The term "Lien" shall also include reservations, exceptions, encroachments, easements, rights-of-way, covenants, conditions, restrictions, leases and other title exceptions and encumbrances affecting property. For the purpose of the Agreement, Tenant shall be deemed to be the owner of any property which it has acquired or holds subject to a conditional sale agreement or other arrangement pursuant to which title to the property has been retained by or vested in some other Person for security purposes.

        "Person"— an individual, partnership, corporation, limited liability company, joint stock company, land trust, business trust, or unincorporated organization, or a government or agency or political subdivision thereof.

        "Subsidiary"— with respect to any Person, (i) a corporation a majority of whose Capital Stock with voting power, under ordinary circumstances, to elect directors is, at the date of determination, directly or indirectly, owned by such Person, by one or more Subsidiaries of such Person or by such Person and one or more Subsidiaries of such Person or (ii) a partnership in which such Person or a Subsidiary of such Person is, at the date of determination, a general or limited partner of such partnership, but, in the case of a limited partner, only if such Person or its Subsidiary is entitled to receive more than 50% of the assets of such partnership upon its dissolution, or (iii) any limited liability company or any other Person (other than a corporation or a partnership) in which such Person, a Subsidiary of such Person or such Person and one or more Subsidiaries of such Person, directly or indirectly, at the date of determination, has (a) at least a majority ownership interest or (b) the power to elect or direct the election of a majority of the directors or other governing body of such Person. When such term is used in respect to Debtor, Subsidiary shall mean States or have material assets in any state, commonwealth or territory of the United States.



        "Voting Securities"— any class of Equity Interests of a Person pursuant to which the holders thereof have, at the time of determination, the general voting power under ordinary circumstances to vote for the election of directors, managers, trustees or general partners of such Person (irrespective of whether or not at the time any other class or classes will have or might have voting power by reason of the happening of any contingency).

Notwithstanding anything in this Exhibit A to the contrary, the Personal Property shall in no event include those fixtures not owned or acquired by Tenant and that are related solely to the operation of the Buildings located on the Premises, including, without limitation, flooring, plumbing and plumbing fixtures, electrical wiring and fixtures and/or HVAC equipment and duct work.


THIRD AMENDMENT TO LEASE AGREEMENT

This Third Amendment to Lease Agreement (this "Amendment") is entered into as of December 4, 2000, between Petula Associates, Ltd. ("Landlord") and Mail Box Capital Corporation. a Delaware corporation, successor-in-interest to Compass International Services Corporation ("Tenant") for the purpose of amending the lease agreement between Landlord and Tenant, dated August 28, 1998, as amended by that certain First Amendment to lease agreement dated December 22, 1998, and by that certain Second Amendment to Lease Agreement dated August 1, 1999, and by that certain Assignment and Assumption of Lease dated August 13, 1999 (collectively the "Lease") covering the premises described therein as approximately 247,618 rentable square feet of space located at 2322 French Settlement, Suites 100-300, Dallas, Texas 75237. Unless otherwise specified herein, all capitalized terms used herein shall have the meanings assigned to them in the Lease.

RECITALS

Tenant desires to modify, the Base Rent, and Landlord has agreed to such modification on the terms and conditions contained herein.

AGREEMENTS

For valuable consideration, whose receipt and sufficiency are acknowledged, Landlord and Tenant agree as follows:

Further, Tenant acknowledges that Tenant's default of the timely deferred payments of Base Rent required by this paragraph of this Amendment will cause an immediate reinstatement of the original Base Rent schedule as set forth in paragraph 2(a) of the original Lease.


Executed as of the date first written above.

  Landlord:

 

 

Petula Associates, Ltd.

 

 

By:

/s/  VANCE VOSS      
  Name:Vance Voss
  Title:Vice President

 

 

By:

 
   
  Name: 
   
  Title: 
   

 

 

Tenant:

 

 

Mail Box Capital Corporation
a Delaware corporation

 

 

By:

/s/  KENNETH W. MURPHY      
  Name:Kenneth W. Murphy
  Title:President

EXHIBIT A
LEASE GUARANTY

        This Lease Guaranty ("Guaranty") is executed this 4th day of December, 2000 by Kenneth W Murphy in his personal and individual capacity (hereinafter "Guarantor") in favor of Petula Associates, Ltd., (hereinafter, "Landlord").

WITNESSETH

        WHEREAS, Landlord has entered into a lease (the "Lease") with Mail Box Capital Corporation, a Delaware corporation, successor-in-interest to Compass International Services Corporation (hereinafter, "Tenant") dated August 28, 1998, as amended by that certain First Amendment to lease agreement dated December 22, 1998, and by that certain Second Amendment to Lease Agreement dated August l, 1999, and by that certain Assignment and Assumption of Lease dated August 13, 1999, and by that certain Third Amendment to Lease Agreement dated of even date herewith (collectively, the "Lease") whereby Tenant has leased from Landlord those premises located at 2322 French Settlement, Suites 100-300, Dallas, Texas 75237 as more particularly described in the Lease (hereinafter, the "Premises");

        WHEREAS, pursuant to the terms, conditions and provisions of the Lease, Tenant has certain obligations, including but not limited to, adherence to and performance of certain covenants, agreements and duties (collectively, the "Deficiency") as defined in the Third Amendment to Lease Agreement;

        WHEREAS, Landlord has requested that Guarantor guarantee to Landlord the punctual and complete performance and observance of all Tenant Obligations by the Tenant; and, but for Guarantor's agreement to guarantee The Deficiency, the Landlord would not enter into the Lease;

        WHEREAS, Guarantor is the President of Tenant and its primary shareholder, and will benefit from the execution of the Third Amendment to the Lease Agreement (the "Third Amendment"); and

        WHERAS, it is the intent of the Guarantor that Guarantor shall be and will remain at all times liable to the Landlord under the terms of this continuing Guaranty to the same extent as if it were jointly and severally liable with the Tenant to the Landlord for the performance of all the terms, conditions, and provisions of the Third Amendment concerning the $185,713.50 Deficiency, as defined in the Third Amendment.

        NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and as a material inducement to and in consideration of Landlord entering into the Lease with Tenant, Guarantor hereby covenants and agrees as follows:

        1.     Guarantor absolutely and unconditionally guarantees to Landlord, its successors and assigns, the full and prompt performance of all The Deficiency including, but not limited to, the payment when due of all rents, charges, and additional sums coming due under the terms of the Lease, and the performance of all covenants and agreements of the Tenant contained therein. Guarantor further unconditionally guarantees the full and prompt payment of all damages that may arise or be incurred by Landlord, its successors and assigns, as a consequence of Tenant's failure to perform any The Deficiency. Guarantor further unconditionally agrees to pay all expenses, including attorneys' fees and legal expenses, paid or incurred by Landlord in endeavoring to collect or enforce the Deficiency or this Guaranty. Such payment and performance is to be made or performed by Guarantor forthwith upon any default by Tenant under the terms of the Lease.

        2.     In the event of the dissolution, bankruptcy, or insolvency of Tenant, or the inability of Tenant to pay debts as they mature, or an assignment by Tenant of the benefit creditors, or the institution of any bankruptcy or other proceedings by or against Tenant alleging that Tenant is insolvent or unable to pay debts as they mature, or Tenant's default under this Lease, and even if such event shall occur at a time when any of The Deficiency may not then be due and payable, Guarantor agrees to pay to



Landlord upon demand, the full amount which would be payable hereunder by Guarantor as if all The Deficiency were then due and payable.

        3.     This Guaranty is of a continuing nature and may not be canceled by the Guarantor for so long as the Lease or any extensions or renewals thereof are in force and effect. Landlord shall not be obligated or required to exhaust its remedies against Tenant as a condition precedent to its collection under this Guaranty. This instrument of Guaranty shall be construed as a guaranty of payment and performance rather than as a guaranty of collection. In addition this Guaranty shall remain in full force and effect after termination of the Lease so long as any of the Deficiency thereunder remain due and payable.

        4.     The Guarantor makes the following representations and warranties which shall survive the execution and delivery, of this Guaranty:

        5.     Guarantor consents, without affecting its liability to Landlord hereunder, that Landlord may, without notice to or further consent of Guarantor, upon such terms as Landlord may deem advisable:


Guarantor hereby ratifies and affirms any such extension, renewal, release, surrender, exchange, modification, impairment, settlement or compromise, and all such acts shall be binding upon Guarantor, who hereby waives all defenses, counterclaims, or offsets which it might have by reason thereof.

        6.     Guarantor covenants and agrees that it shall not be released from the obligations of this Guaranty, nor shall such obligations be diminished or otherwise affected by (a) any extension of time or other indulgence granted to Tenant or by a waiver with respect to The Deficiency or any of them, (b) any assignment of the Lease or any subletting of all or any portion of the premises, (c) any amendment or modification of the Lease, or (d) any other act or omission of Landlord other than a written waiver by Landlord specifically modifying or terminating this Guaranty.

        7.     Guarantor hereby expressly waives: (a) notice of the acceptance of this Guaranty, (b) notice of the existence, creation, amount, modification, amendment, alteration or extension of the Lease or all or any of The Deficiency, whether or not such notice is required to be given to Tenant under the terms of the Lease, (c) presentment, demand, notice of dishonor, protest, and all other notices whatsoever, (d) the benefit of any statute of limitations available to Tenant or Guarantor to the fullest extent such waiver is available by law, (e) any benefit of valuation, appraisement, homestead, or other exemption law, now or hereafter in effect in any jurisdiction in which enforcement of this Guaranty is sought, and (f) all diligence in collection, perfection, or protection of or realization upon any of The Deficiency, any obligation of Guarantor hereunder, or any security for any of the foregoing.

        8.     No delay on the part of Landlord in the exercise of any right or remedy as to either Tenant or as to Guarantor shall operate as a waiver thereof, and no final or partial exercise by Landlord of any right or remedy shall preclude other or further exercises thereof or the exercises of any other right or remedy.

        9.     The validity of this Guaranty and the obligations of Guarantor hereunder shall not be terminated, affected or impaired by reason of any action which Landlord may take or fail to take against Tenant nor by reason of any waiver of, or failure to enforce, any of the rights or remedies reserved to Landlord in the Lease, or otherwise, nor by reason of the bankruptcy, insolvency or inability to pay debts as they mature of the Tenant and whether or not the term of the Lease shall terminate by reason of said bankruptcy, insolvency, or inability to pay debts as they mature.

        10.   If and to the extent that the Guarantor makes any payment to the Landlord pursuant to or in respect of this Guaranty, the Guarantor hereby waives any right of subrogation against the Tenant.



        11.   No invalidity, irregularity or unenforceability of all or any part of the Lease or of any security thereof, shall affect, impair or constitute a defense to this Guaranty. This Guaranty is a direct and primary obligation of the Guarantor, and Guarantor's obligations hereunder are not as a surety.

        12.   If and to the extent that the Guarantor makes any payment to the Landlord pursuant to or in respect of this Guaranty, any claim which the Guarantor may have against the Landlord by reason thereof shall be subject and subordinate to the prior payment in full of all of the Deficiency.

        13.   The Guarantor acknowledges that a copy of the Lease has been made available to the Guarantor and that the Guarantor is familiar with its contents.

        14.   All requests, demands or other communications pursuant hereto shall be in writing addressed as follows:

If to the Landlord: Petula Associates, Ltd,
c/o The Holt Companies, Inc.
1840 Hutton Drive, Suite 100
Carrollton, Texas 75006

if to Guarantor:

 

Kenneth W. Murphy
_____________________
_____________________

All notices shall be sent by certified mail, return receipt requested.

        15.   Miscellaneous.


Executed on the day and year first written above.

  GUARANTOR:
  Name:                    /s/  KENNETH W. MURPHY      
  Printed Name:Kenneth W. Murphy,
Personally and Individually
  Address:3700 Pipestone Rd.
Dallas, Texas 75212
    Phone Number:214-688-0331
    Fax Number:214-637-4286

 

 

 

 

Home Address:

2502 Fairbrook, Irving, TX

 

 

 

 

Social Security Number:

   -  -    
    Driver's License Number:00693332 TX
    Telephone Number:972-255-4861

Accepted this 19th day of December, 2000.

  LANDLORD:

 

 

Petula Associates, Ltd.

 

 

Name:

 
   
  Printed Name: 
   
  Title: 
   

 

 

Name:

 
   
  Printed Name: 
   
  Title: 
   

ClubJuris.Com