OFFICEBUILDING LEASE NEWQUESTOFFICE PARK BY ANDBETWEEN: DEEPDOWN,INC. TENANT A-K-S-L49 BELTWAY 8, L.P. LANDLORD NOVEMBER24.2008 TABLE OFCONTENTS

(a)                   As base rental for the Lease and use of the Leased Premises ("Base Rent"), Tenant will pay landlord at the Building managers office or other location as Landlord may direct, without demand and without deduction. abatement or setoff (except as otherwise expressly provided for in Paragraph 9 or Paragraph 19), the sum of SIXTEEN AND 50/100 DOLLARS ($16.50) per square foot of Rentable Area of the Leased Premises per year at the monthly Rent of Twelve Thousand One Hundred Seventy-Seven and 00/100 Dollars ($12,177.00) for months six (6) through seventeen (17) of the Term; then SEVENTEEN AND 00/100 DOLLARS ($17.00) per square foot of Rentable Area of the Leased Premises per year at the monthly Rent of Twelve Thousand Five Hundred Forty-Six and 00/100 Dollars ($12,546.00) for months eighteen (18) through twenty-nine (29) of the Term; then SEVENTEEN AND 50/100 DOLLARS ($17.50) per square foot of Rentable Area of the Leased Premises per year at the monthly Rent of Twelve Thousand Nine Hundred Fifteen and 00/100 Dollars ($12,915.00) for months thirty (30) through forty-one (41) of the Term; then EIGHTEEN AND 00/100 DOLLARS ($18.00) per square foot of Rentable Area of the Leased Premises per year at the monthly Rent of Thirteen Thousand Two Hundred Eight-Four and 00/100 Dollars ($ 13,284.00) for months forty-two(42) through fifty- three (53) of the Term; then EIGHTEEN AND 50/100 DOLLARS ($18.50) per square foot of Rentable Area of the Leased Premises per year at the monthly Rent of Thirteen Thousand Six Hundred Fifty-Three and 00/100 Dollars ($13,653.00) for months fifty-four (54) through sixty-five (65) of the Term; then NINETEEN AND 00/100 DOLLARS ($19.00) per square foot of Rentable Area of the Leased Premises per year at the monthly Rent of Fourteen Thousand Twenty-Two and 00/100 Dollars ($14,022.00) for months sixty-six (66) through seventy-seven (77) of the Term; then NINETEEN AND 50/100 DOLLARS ($19.50) per square foot of Rentable Area of the Leased Premises per year at the monthly Rent of Fourteen Thousand Three Hundred Ninety-One and 00/100 Dollars ($14,391.00) for months seventy- eight (78) through eighty-nine (89) of the Term. No Base Rent shall be payable during months one (1) through five (5) of the Term. Beginning on the sixth month of' the Term, Base Rent shall be paid in advance on the first day of each calendar month,. for each and every month in the Term, in lawful money of the United States. If the Term does not commence on the first day of a calendar month or end on the last day of a calendar month, Tenant will pay in advance a pro rata part of such sum as Base Rent for such partial month, which pro rata amount shall be figured on the ratio that the number of days from the first day of the Term bears to the total number of days in the first calendar month of the Term.

 

(b)                   Beginning on the sixth month of the Term, Tenant agrees to pay as additional rent, as hereafter provided, an amount equal to Tenant's "Pro Rata Share" of  ''Operating Expenses" as such quoted terms are herein defined) adjusted from time to time, pursuant to the provisions hereafter stated. As used herein, the term "Pro Rata Share" shall mean 17.46%, which is the percentage obtained by dividing the rentable square feet of area in the Premises, which is stipulated to be 8,856 rentable square feet by the total number of square feet of area in the Building, which is stipulated to be 50,710 rentable square feet. Landlord shall utilize accounting records and procedures conforming to generally accepted accounting principles, consistently applied, with respect to all aspects of determining Tenant's Pro Rata Share of the Total Cost (herein defined). As used herein, the term "Operating Expenses' means all expenses, costs and disbursements of every kind which Landlord shall pay in connection with the operation and maintenance of the Project, including, without limitation, the following:

 

(i)      wages, salaries and fees of all personnel or entities engaged in the operation, maintenance or security of the Project, including taxes, insurance and benefits relating thereto: provided, however, that if during the Term such personnel or entities are working on other projects periodically developed or operated by Landlord as well as working on the Project, their wages. salaries, fees and related expenses shall be appropriately allocated among all of such projects and only those portions of such expenses reasonably allocable to the Project shall be included as Operating Expenses;

 

(ii)      all supplies and materials used in the operation, repair, cleaning and maintenance of the Project;

 

(iii)     cost of all maintenance, security and service agreements for the Project and the equipment thereon, including, without limitation. alarm service, janitorial service, trash removal service, window cleaning, elevator maintenance, landscaping, lawn care and irrigation service, and parking area maintenance;

 

(iv)     cost of all insurance relating to the Project for which Landlord is responsible hereunder, or which Landlord considers reasonably necessary for the operation of the Project, including. without limitation, the cost of casualty and liability insurance applicable to the Project and Landlord's personal property used in connection therewith, and the cost of business interruption insurance in such amounts as will reimburse Landlord for all losses of earnings and other income attributable to such perils as are commonly insured against by prudent landlords;

 

(v)    all taxes, assessments, and other governmental charges, whether federal, state, county. or municipal, and whether assessed by taxing districts or authorities presently taxing the Project or by others, subsequently created or otherwise, and any other taxes and assessments attributable to the Project or its operation (including, without limitation, any sales or use taxes), exclusive of any inheritance, gift, franchise, income, corporate or profit taxes which may be assessed against Landlord;

(d)       Tenant further agrees to pay as part of "Additional Rent", an amount equal to Tenant's Pro Rata Share of the "Tax" and "Insurance Charges" (as hereafter defined) adjusted from time to time, as hereafter provided:

 

(i)          The phrases "Tax" and "Taxes", as used herein, shall mean all taxes, assessments, impositions, levies, charges, and other sums (whether now existing or hereafter arising, whether foreseen or unforeseen and whether made under the present system of real estate taxation or some other system), levied, assessed. charged or imposed by any governmental authority or other taxing authority (including, but not by way of limitation, municipal utility district taxing authorities) or which accrue upon the Project for any Calendar Year (or portion thereof) during the Term, including, without  limitation, any future tax upon rents received by Landlord (to he distinguished from income, franchise or profit taxes), as well as any costs incurred by Landlord contesting any such Taxes or obtaining consultants relative to any tax assessments, together with all penalties, interest and other charges (with respect to taxes) payable by reason of any delay and/or failure or refusal of Tenant to make timely payment as required under this Lease. "Taxes" shall not include any of Landlord's income, franchise or profit, estate, inheritance or gift taxes.

 

(ii)          The phrase "Insurance Charges" shall mean the total annual insurance premiums which accrue on all fire and extended coverage insurance, boiler insurance, public liability and properly damage insurance, rent insurance, and any other insurance which, from time to time, may, at Landlord's election, be carried by Landlord with respect to the Project during any Calendar Year (or portion thereof) during the Term; provided, however, that in the event, during any such Calendar Year, all or any part of such coverage is written under a blanket policy or other policy form whereby Landlord is unable to determine a specific insurance premium charge applicable to the Project (or to determine an equitable manner in which to prorate such charge among the properties covered by such policy), then in such event, the amount considered to be the Insurance Charge with respect to such policy shall be that amount, as reasonably determined by Landlord. which would have been the annual Insurance Charge payable under the rates in effect (at approximately the same time that such policy was issued) for a separate Texas standard form insurance policy generally providing such type and amount of coverage (without any deductible amount) with respect to the Project (considering the type of construction and other relevant matters), even though Landlord carried such insurance, or a portion thereof, under such blanket coverage. Landlord may, from time to time, make a corresponding calculation as such policy is renewed or replaced. The phrase "Insurance Charges" shall also include the amount of any deductibles payable with respect to insurance carried by Landlord with respect to the Project.

 

(d)          Tenant shall pay to Landlord monthly estimated Operating Expenses, and estimated Tax and Insurance Charges (all of which are hereafter referred to as the "Monthly Estimated Costs"), as determined by Landlord from time to time, which shall be due and payable on or before the first day of each month during the Term hereof. Within one hundred twenty (120) days after the end of each Calendar Year occurring during the Term (and subsequent to the expiration or other termination of this Lease, if such occurs on a date other than the last day of the Calendar Year), Landlord will give Tenant notice of the total amount paid by Tenant for the applicable Calendar Year together with the actual amount of (i) Operating Expenses and (ii) Tax and Insurance Charges for such Calendar Year (collectively referred to in this section as the "Total Costs"). It the actual amount of Tenant's Pro Rata Share the Total Costs with respect to such period exceeds the aggregate amount previously paid by Tenant with respect thereto during such period, Tenant shall pay to Landlord the deficiency within thirty (30) days following notice from Landlord: if, however, the aggregate amount previously paid by Tenant with respect thereto exceeds Tenant's Pro Rata Share of the Total Costs for such period, then, at Landlord's election, such excess (net of any amounts then owing by Tenant  to Landlord) shall be credited against the next installment of any such cost due hereunder by Tenant, or Landlord may refund such net excess to Tenant within thirty (30)days following delivery of Landlord's notice. Periodically, during the Term of this Lease, Tenant shall pay all taxes assessed against Tenant's personal property and leasehold improvements. Notwithstanding anything contained in this Article 4 to the contrary, annual increases in the amount of Tenant's Additional Rent (Tenant's Pro Rata Share of Operating Expenses, Taxes and insurance) shall be capped at ten percent (10%), calculated on a cumulative basis, solely with respect to Controllable Expenses following the first full calendar year of the Project. “Controllable Expenses” specifically does not include ( i) Insurance, (ii) Taxes, (iii) utilities, and (iv) any change in Additional Rent which is a result of an increase in minimum wage, labor unions, or any change mandated by governmental regulation.

 

(e)          The term "Calendar Year as used herein, means each calendar year and partial calendar year for the full Term hereof. The First (1st) Calendar Year means the period which begins with the Commencement  Date and which ends on the following 31st day of December. Each following Calendar Year period shall be for a term of a full twelve (12) months beginning with the next following January 1st and shall continue for each and every twelve (12) month period thereafter; however the last Calendar Year shall be for less than twelve (12) months if the Lease Term ends on a date other than December 31st.

 

(f)         For all purposes tinder this Lease, "Rent" shall mean the Base Rent and Additional Rent. Tenant acknowledges that late payment by Tenant to Landlord of all Rent or other charges due from Tenant under this Lease will cause Landlord to incur costs not contemplated by this Lease, the exact amount of such costs being extremely difficult and impractical to fix. Such costs include, without limitation, processing accounting charges, and late charges that may be imposed on landlord by the terms of any encumbrance and note secured by any encumbrance covering the demised premises. Therefore, if any installment of Rent or other charges due from Tenant under this Lease is not received within ten (10) days of the date when due, Tenant shall pay to Landlord an additional sum of ten percent (10%) of the overdue Rent or earlier charges due from Tenant under this Lease as a late charge. Further, the parties agree that this late charge represents a fair and reasonable estimate of the costs that Landlord will incur by reason of late payments by Tenant, however, Landlord's acceptance of any late charge shall not constitute a waiver of Tenant's default with respect to the overdue amount, nor prevent Landlord from exercising any of the other rights and remedies available to Landlord.

(e)    If, at any time during the Term, Tenant vacates, abandons, or ceases its operation at the Lease Premises for more than ninety (90) days (except as a result of casualty or condemnation). Landlord shall provide written notice to Tenant thereof. and if Tenant shall not have recommenced its occupancy for operation at the Premises within thirty (30) days following receipt of such notice, then Landlord shall have the right to immediately recapture the Leased Premises and in such event, the Lease Term shall expire and end on the date stated in Landlord's notice (the "Recapture Notice"), in which event neither Landlord nor Tenant shall have any further liability hereunder, except for those obligations which expressly survive the expiration or earlier termination of this Lease.

 

7.    SERVICE TO BE PROVIDED BY LANDLORD.

 

(a)    Subject to the Building rules and regulations hereinafter set forth, Landlord shall furnish Tenant, at Landlord's expense, except as provided in Paragraph 4 above, the following services while Tenant is occupying the Leased Premises during the Term:

 

(i)          During normal business hours (7:00 a.m. - 7:00 p.m.) on Mondays through Fridays, and, Saturdays (9:00. a.m. - 12:00 p.m.) air-conditioning and beating in season, at such temperatures and in such amounts as are considered by Landlord to be standard. but such service outside normal business hours and on Sundays and holidays shall be furnished only at Landlord's discretion and in any event only upon forty-eight (48) hours prior written request by Tenant, who shall bear the standard charges of Landlord therefor, which shall never be less than the cost thereof

 

(ii)          Hot and cold water at those points of supply provided for general use.

 

(iii)          Standard building janitor service in and about the Building and the Leased Premises, five (5) days per week, and periodic window washing; however, Tenant shall pay the additional costs attributable to the cleaning of improvements within the Leased Premises other titan building standard improvements.

 

(iv)          Elevators for ingress to and egress from the Building during normal business hours and other such periods as are considered by Landlord to be standard.

 

(v)          Proper building standard facilities to furnish sufficient electrical power for standard lighting, typewriters, dictating equipment, calculating machines and other machines of similar low electrical consumption, but not including electricity required for special lighting in excess of building standard, or which, in Landlord's reasonable judgment, exceeds the capacity of existing feeders, conductors, risers, or wiring in or to the Leased Premises or Building, and not including electricity for any other item of electrical equipment which singly consumes more than 0.25 kilowatts per hour at rated capacity, or voltage other than 120 volts or single phase. Tenant shall pay to landlord, monthly as billed, such charges as may be separately metered or as Landlord's engineer may compute for any electrical service furnished to Tenant in excess of that stated above.

 

(vi)          Replacement of fluorescent lamps in building standard ceiling mounted fixtures installed by Landlord and incandescent bulb replacement in public areas.

 

(b)    No interruption, moratorium or malfunction of any services, or failure of any machinery, equipment or systems, or components thereof, to operate, or malfunction in the operation thereof, for any cause whatsoever shall constitute an eviction or disturbance of Tenant's use and possession of the Leased Premises or Project or a breach by Landlord of any of its obligations hereunder or render Landlord liable for damages or entitle Tenant to be relieved from any of its obligations hereunder (including the obligation to pay Rent) or grant Tenant any right of setoff or recoupment. In the event of any such interruption, however, Landlord shall use reasonable diligence to restore such service in any circumstances in which such restoration is within the reasonable control of Landlord and the interruption was not caused by Tenant's fault or the fault of Tenant's employees, agents, contractors, invitees, or licensees. Notwithstanding anything contained herein, Landlord shall use reasonable efforts to restore any service required of it that becomes unavailable: however, such unavailability shall not render Landlord liable for any damages caused thereby, be a constructive eviction of Tenant, constitute a breach of any implied warranty, or, except as provided in the next sentence, entitle Tenant to any abatement of Tenant's obligations hereunder. If, however, Tenant is prevented from using the Premises for more than live (5) consecutive business days because of the unavailability of any such service and such service is within Landlord's control, then Tenant shall, as its exclusive remedy be entitled to a reasonable abatement of Base Rent and Additional Rent for each consecutive day (after such 5-day period) that Tenant is so prevented from using the Premises.

 

(c)    Should Tenant desire any additional services beyond those described in Subparagraph (a) of this Paragraph 7 or rendition of any such services outside the normal times of Landlord for providing such services. Landlord may (at Landlord's option), upon reasonable advance notice from Tenant to Landlord, furnish such services, and Tenant agrees to pay Landlord such charges as may be agreed on between Landlord and Tenant, but in no event at a charge less than Landlord's actual cost plus reasonable overhead for the additional services provided. By way of illustration and not limitation, special equipment requiring abnormal use of water or electricity used as a power source for data processing machines, including, air conditioning costs therefor, large business machines and similar equipment of high electrical consumption characteristics shall not constitute standard water consumption or electrical service, as the case may be, and the costs thereat' shall he paid by Tenant. Tenant hereby agrees to cause, at its sole expense, separate meters for measuring units of' consumption to be installed within the Leased Premises, if the services consumed by Tenant are reasonably determined by Landlord to be beyond or more than those services described in Subparagraph (a) of this Paragraph 7 to be provided by Landlord.

(d)          Tenant shall pay to the Landlord the amount provided for in this Paragraph 7(c) for additional services within five (5) business days after receipt of an invoice therefor from Landlord.

 

(e)          Tenant shall also pay for, before delinquencies, all telephone charges and the cost or charge for all other materials and services not expressly the obligation of Landlord that are Furnished to or used on, in or about the Leased Premises by other parties during the Term of this Lease.

 

8.    REPAIR AND MAINTENANCE.

 

(a)          Landlord shall, subject to the casualty provisions of Paragraph 9, maintain the (i) Common Area and service areas of the Project, ( ii) roof, foundation, exterior windows and load-bearing items of the Building; (iii) exterior (located outside the Leased Premises) surfaces of walls; (iv) plumbing, pipes and conduits located in the Common Area or service areas of the Project; and (v) the Buildings central heating, ventilation and air conditioning, electrical, mechanical and plumbing systems, landlord is not required to make any repair in connection with or resulting from (1) any alteration or modification to the Leased Premises or to Building equipment performed by, for or because of Tenant or to special equipment or systems, installed by, for or because of Tenant, (2) the installation, use or operation of Tenant's property, fixtures, and equipment, (3) the moving of Tenant's property in or out of the Building, or in and about the Leased Premises, (4) Tenant's use or occupancy of the Leased Premises in violation of Paragraph 6 or in a manner set out in this Lease (e.g. subsequent installation of special use rooms), (5) the acts or omissions of Tenant and Tenant's employees, agents, invitees, subtenants, licensees or contractors, or (6) fire or other casualty, except as provided in Paragraph 9. Depending on the nature of repairs undertaken by Landlord, the cost of the repairs will be borne solely by Landlord (if required to be under the terms of the Lease) or will be reimbursed to Landlord either by a particular tenant or tenants or by all tenants as part of the Operating Expenses.

 

(b)          Except for janitorial services provided by Landlord and landlord's obligations under Paragraph I(b) and 8(a), and subject to the terms of Paragraph 15. Tenant shall maintain the Leased Premises, including all fixtures installed by Tenant, in good and tenantable condition and repair and shall promptly make all reasonably necessary non­structural repairs and replacements thereto except those caused by fire or other casualty covered by insurance on the Building under policies naming Landlord as the insured. all at Tenant's sole expense, under the supervision and with the reasonable approval of Landlord. Such repairs and replacements shall be in quality and class equal to the original work. Without diminishing such obligations of Tenant, if Tenant fails to make such repairs or replacements within fifteen (15) days after the occurrence of the damage or injury, Landlord may at its option (after prior written notice to Tenant) make such repair and Tenant shall pay Landlord for the reasonable cost thereof upon demand, plus interest thereon, as provided in this Lease, from demand until payment. In addition, Tenant shall pay the cost of repair and replacement due to damage or injury done to the Building or any part thereof or any part of the Project, by Tenant or Tenant's agents, employees, contractors, licensees or invitees. Such amount shall be paid by Tenant to Landlord within five (5) business days, after written demand, plus interest thereon, as provided in this Lease, from demand until payment. Upon termination of this Lease, Tenant will surrender the Leased Premises to Landlord in the same condition in which they existed at the commencement of the Lease or as subsequently Unproved by Landlord or Tenant, excepting only ordinary wear and tear and damage arising from any cause required hereunder to be repaired at Landlord's expense.

 

(c)          If there now is or shall be installed in the Building a "sprinkler system" and such systems or any of its appliances shall be damaged or injured or not in perfect working order by reason of any act or omission of Tenant, Tenant's agents, servants, employees, contractors, licensees or invitees, Tenant shall forthwith restore same to good working condition at its own expense under the supervision and with the approval of Landlord; and if any bureau, department or official oldie state or city government require or recommend that any changes, modifications or alterations be made or that sprinkler heads and equipment be supplied by reason of Tenant's business, or the location of partitions, trade Fixtures or other contents of the Leased Premises. Tenant shall, at Tenant's expense, promptly make and supply such changes, or modifications, alterations, additional sprinkler heads or other equipment.

 

(d)          Tenant acknowledges that after it has inspected the Leased Premises and Tenant's taking possession of the Leased Premises shall be conclusive evidence as against the Tenant that the Leased Premises were in good order and satisfactory condition when the Tenant took possession. No promise of the Landlord to alter, remodel, repair or improve the Leased Premises or the Building and no representation respecting the condition of the Leased Premises or the Building have been made by Landlord to Tenant, other than as may be contained herein or in a separate Work Letter agreement signed by Landlord and, Tenant.

 

9.    LANDLORD'S INSURANCE; FIRE AND CASUALTY.

 

(a)    Landlord will maintain fire and extended coverage insurance on the Building in an amount not less than 80% (or such greater percentage as necessary to comply with co-insurance requirements of the policy) of the "replacement cost" thereof, as defined in a Replacement Cost Endorsement to be attached thereto. Said insurance is for Landlord's sole benefit and is under its sole control.

11.          INDEMNITY. Landlord shall not be liable for and Tenant agrees to indemnify and save harmless Landlord and its affiliates and their agents, servants, directors, officers and employees (collectively "Indemnitees") from and against any and all liabilities, damages, claims, suits, costs (including reasonable costs of suit, reasonable attorneys' fees and reasonable costs of investigation) and actions of any kind arising or alleged by the injured party or arise by reason of injury to or death of any person or damage to or loss of property occurring on, in or about the Leased Premises or by reason of any other claim whatsoever of any person or party occasioned or alleged to be occasioned by any act or omission on the part of Tenant or any invitee, patron, licensee, employee, director, officer, agent, servant, owner, contractor, subcontractor, or tenant of Tenant, or on the part of any person entering the Building or Leased Premises under the expressed or implied invitation of Tenant, or by any breach, violation or nonperformance of any covenant of Tenant, or by any breach, violation or nonperformance of any covenant of Tenant under this Lease, whether such liability, claims, suits, costs, injuries, deaths, or damages arise from or are attributed to the concurrent negligence of any Indemnitee, if any action or proceeding shall be brought by or against any Indemnitee in connection with any such liability or claim, Tenant, on notice from the Indemnitee shall defend such action or proceeding, at Tenant's expense, by or through attorneys reasonably satisfactory to the Indemnitee. The provisions of this Paragraph shall apply to all activities of Tenant with respect to Leased Premises or the Project, occurring after execution of this Lease, Tenant's obligations under this Paragraph shall not be limited to the limits or coverage of insurance maintained or required to be maintained by Tenant under this Lease.

 

12.          WAIVER OF LIABILITY. No Indemnitee shall be liable in any manner to Tenant or any other person or party for any injury to or death of persons or for any loss of or damage to property of Tenant, its employees, agents, customers, invitees or to others, regardless of whether such property is entrusted to employees of the Building or such loss or damage is occasioned by casualty, theft or any other cause of whatsoever nature, unless caused by the willful misconduct or gross negligence of the particular Indemnitee. In no event shall any Indemnitee be liable in any manner to Tenant or any other person or party as a result of the acts or omissions of Tenant, its agents, employees, contractors, invitees, patrons, licensees, directors, officers, tenants, or any other person or party entering the Project or the Leased Premises under the expressed or implied invitation of Tenant, or any other tenant of the Building. All personal property upon the Leased Premises shall be at the risk of Tenant only, and no Indemnitee shall be liable for any damage thereto or theft thereof, whether or not due in whole or in part to the negligence of any Indemnitee.

 

13.          WAIVER OF SUBROGATION. Regardless of fault or negligence, Landlord and Tenant hereby waive any claim arising in favor of one against the other, or anyone claiming through either, by way of subrogation or otherwise, for any loss of or damage to any property of either which loss or damage is covered under their respective casualty insurance policies (including extended coverage). Said waiver shall be in addition to any other waiver or release contained in this Lease with regard to loss or damage to property of either. Landlord and Tenant each shall request its insurer to consent to such waiver and agree to waive all rights of subrogation against the other party, and Landlord and Tenant shall provide the other party with all endorsements necessary to evidence the consent of its insurer.

 

14.          TENANT'S INSURANCE. Tenant shall maintain at all times during the term of this Lease, at Tenant's expense:

 

(a)          CASUALTY INSURANCE; including extended coverage, vandalism, and malicious mischief, and demolition and debris removal, insuring for an amount not less than 80% of the current replacement cost of all Tenant improvements, alterations or additions made to the Leased Premises by Tenant, and Tenant's trade fixtures, inventory, furniture and equipment owned, controlled or in use by Tenant and situated in the Leased Premises. Landlord shall have no interest in the insurance upon Tenant's equipment and trade fixtures other than as a lien holder pursuant to Paragraph 21 with respect to such equipment and trade fixtures. Landlord will not carry insurance insuring Tenant's property unless it elects to do so pursuant to Paragraph 14(1) below.

 

(b)          COMMERCIAL GENERAL LIABILITY INSURANCE including Bodily Injury and Property Damage Liability and Person & Advertising Injury Liability on an occurrence basis with respect to Tenant's business and occupancy of the Leased Premises for any one occurrence or claim of not less than $2,000,000. with N/A Products Aggregate and $5,000,000 General Aggregate, or such greater amount as Landlord may reasonably require in writing from time to time. Such insurance shall contain a provision including coverage for all liabilities assumed by Tenant under this Lease and shall name Landlord as an additional insured.

 

(c)          WORKER'S COMPENSATION INSURANCE for all Tenant employees working in the Leased Premises in an amount sufficient to comply with applicable laws or regulations. The policy shall include Employer's Liability with minimum limits of Sl00.000 per accident, $100,000 per employee, $500.000 policy limit.

 

(d)          INSURANCE against such other perils and in such amounts as Landlord may from time to time reasonably require in writing. Such request shall be made on the basis that the insurance coverage requested is customary at the time for prudent tenants.

 

All policies of insurance required to be maintained by Tenant hereunder shall (i) be in a form acceptable to Landlord: (ii) be issued by an insurer licensed to do business in the state in which the Building is situated and which insurer shall otherwise be reasonably acceptable to Landlord: (iii) require at least thirty (30) days written notice to Landlord before termination or material alteration: and (iv) with respect to insurance, required under Subparagraphs (a), (h), and (e), name Landlord and Landlord's Mortgagee as an "additional insured". Tenant shall, upon the commencement of the Term of this Lease and thereafter within thirty (30) days prior to the expiration of each such policy, promptly deliver to Landlord certified copies or other evidence of such policies and evidence satisfactory to Landlord that all premiums have been paid and the policies are in effect.

(a)          Tenant accepts this Lease subject and subordinate to any mortgage, deed of trust or other lien presently existing or hereafter placed upon the Building and to any renewals and extensions thereof; but Tenant agrees that any mortgagee and/or beneficiary of any such deed of trust or other lien ("Landlord's Mortgagee") and/or Landlord shall have the right (but shall not be obligated) at any time to subordinate such mortgage, deed of trust or other lien to this Lease on such terms and subject to such conditions as Landlords Mortgagee may deem appropriate in its discretion. Within thirty (30) days following Tenant's execution of this Lease, Tenant agrees to promptly execute and deliver a subordination, non-disturbance and attornment agreement ("SNDA"), substantially in the forms attached hereto as Exhibit "D", subordinating this Lease, as Landlords Mortgagee shall request, Landlord shall deliver to Tenant the fully-executed SNDA within sixty (60) days after Landlord receives Tenant's executed counterpart copy of the SNDA.

(b)          If a mortgagee or other lienholder or any other purchaser acquires the Building or Project as a purchaser at a foreclosure sale (any such mortgagee or other lienholder or purchaser at a foreclosure sale being each hereinafter referred to as the "Purchaser at Foreclosure"), then Tenant shall (at the sole and absolute election of the Purchaser at Foreclosure) thereafter remain bound to the terms of this Lease to the same effect as if a new and identical lease between the Purchaser at Foreclosure, as Landlord and Tenant, as Tenant, had been entered into for the remainder of the Term of the Lease in effect at the time of the foreclosure. Tenant shall, on request, execute any certificate or instrument necessary or desirable further to confirm a Purchaser at Foreclosures election to continue (or discontinue) of the Lease in effect alter foreclosure, as above provided. If the Purchaser at Foreclosure elects to continue this Lease within ninety (90) days after such foreclosure, Tenant shall attorn and pay vent to the Purchaser at Foreclosure as if that party were a signatory to this Agreement as "Landlord".

(c)    In the event that Tenant shall fail to execute any instrument described in (a) or (b) above within seven (7) days as requested. Tenant hereby irrevocably constitutes Landlord as Tenant's attorney-in-fact to execute such instrument in Tenant's name, place and stead, it being stipulated by Landlord and Tenant That such agency is coupled with an interest in Landlord and is, accordingly, irrevocable.

18.    RULES AND REGULATIONS.

(a)          Tenant shall not exhibit, sell or offer for sale on the Leased Premises or on the Project any article or thing (except those articles or things essentially connected with the stated use of the Leased Premises by Tenant) without the prior written consent of Landlord.

(b)          Tenant shall not display, inscribe, print, paint, maintain, or affix in or about the Project any sign, notice, legend, direction, figure or advertisement, except on the doors of the Leased Premises and on the Building directory and then only such names) and matter and in such color, size, style, place and materials as shall first have been approved by the Landlord. The listing of any name other than that of Tenant, whether on the doors of the Leased Premises, on the Building directory or otherwise, shall not operate to vest in any additionally named party any right or interest in this Lease or in the Leased Premises or be deemed to be written consent of Landlord to any act of Tenant, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to Tenant.

(c)          Tenant shall not advertise the business, profession or activities of the Tenant conducted in the Leased Premises in any manner that violates the letter or spirit of any code of ethics adopted by a recognized association or organization pertaining to such business, profession or activities and shall not use the name of the Building for any purposes other than that of the business address of the Tenant and shall never use any picture or likeness of the Building in any circular, notices, advertisements or correspondence without Landlord's consent.

 

(d)          No additional locks or similar devices shall be attached to any door or window without Landlord's prior written consent. No keys for any door other than those provided by the Landlord shall be trade. If more than two (2) keys for one lock are desired, Landlord will provide the same upon payment by Tenant of the cost of making such additional keys. All keys must be returned to Landlord at the expiration or termination of this Lease.

 

(e)    All persons entering or leaving the Building alter hours on Monday through Friday, or at any time on Saturdays, Sundays or holidays, may be required to do so under such regulations as Landlord may impose. The Landlord may exclude or expel any peddler, and Landlord shall not be required to accept any deliveries or packages on behalf of Tenant.

 

(f)    Tenant shall not overload, in accordance with commercially reasonable standards, any floor. Landlord may direct the time and manner of delivery, routing and removal and the location of safes and other heavy articles.

 

(g)    Unless Landlord gives advance written consent, Tenant shall not install or operate any steam or internal combustion engine, boiler, machinery, refrigerating or heating device or air conditioning apparatus in or about the Leased Premises or carry on any mechanical business therein or use the Leased Premises for housing accommodations or lodging or sleeping purposes, or do any cooking with the exception of microwave ovens therein or use or permit to be brought into the Building any inflammable fluids such as gasoline, kerosene, naphtha and benzine or any explosive, radioactive materials or other articles deemed extra hazardous to life, limb or property. Tenant shall not use the Leased Premises of any illegal or immoral purposes.

(h)         Tenant shall reasonably cooperate fully with Landlord to assure the commercially effective  operation of the Buildings air-conditioning system, including the closing of venetian blinds and drapes.

 

(i)          The sidewalks, halls, passages, exits, entrances, elevators and stairways shall not be obstructed by Tenant or used for any purpose other than for ingress to or egress from the Leased Premises. The halls, passages, exits, entrances. elevators, stairways and roof, not for the uses of the general public and Landlord shall in all cases retain the right to control and prevent access thereto by all persons whose presence, in the judgment of Landlord, shall be prejudicial to the safety, character, reputation and interests of the Building and its tenants. Neither Tenant nor the agents. Contractors, employees, or invitees of Tenant shall go upon the roof or mechanical floor of the Building. Tenant shall keep closed at all times, except for ordinary use, all corridor entrance/exit doors in the Leased Premises.

 

(j)    Tenant shall not use, keep or permit to be used or kept any foul or noxious gas or substance in the Leased Premises or permit or suffer the Leased Premises to be occupied or used in a manner offensive or objectionable to landlord or other occupants of the Building by reason of noise, odors and/or vibrations, or interfere in any way with other tenants or those having business there, nor shall any animals or birds be brought in or kept about the Leased Premises or the Building.

 

(k)    Tenant shall see that the doors and windows, if operable, of the Leased Premises are closed and securely locked before leaving the Building and shall observe strict care and caution that all water faucets or water apparatus are entirely shut off before Tenant or Tenant's employees leave the Building and that all electricity shall likewise be shut off so as to reasonably prevent waste or damage. For any default of or under this Lease by Tenant or carelessness of Tenant, Tenant shall reimburse, indemnify and hold harmless Landlord and all other tenants and occupants of the Project for or front all injuries or losses sustained by Landlord or other tenants or occupants of the Building.

 

In addition to all other liabilities for any failure by Tenant to observe the rules and regulations, Tenant shall pay to Landlord an amount equal to any increase in insurance premiums payable by the Landlord or any other tenant in the Building caused solely by such failure. The inability of Landlord to cause another occupant of the Building to comply with the rules and regulations will neither excuse Tenant's obligation to comply with the rules or any other provisions of this Lease, nor cause Landlord to he liable to Tenant for any damages resulting to Tenant. Tenant shall cause its employees, agents, invitees, licensees and contractors to comply with all rules and regulations for the Project.

 

19.          EMINENT DOMAIN. If there shall be taken by exercise of the power of eminent domain during the Term of this Lease any of the Leased Premises. Landlord or Tenant may elect to terminate this Lease. If more than ten percent (10%) of the Building shall be taken by exercise of the power of eminent domain during the Term of this Lease, Landlord may elect to terminate this Lease. If neither party terminates this Lease, then this Lease shall continue in full force and effect, except that Rent shall be reduced in proportion to the area of the Leased Premises to be taken and Landlord shall repair any damage to the Leased Premises or Building resulting from such taking. All sums awarded or agreed upon between Landlord and the condemning authority for the raking of the interest of Landlord or Tenant, whether as damages or as compensation, will be the property of Landlord without prejudice, and are hereby assigned from Tenant (to the extent of Tenant's interest) to Landlord. However, as to claims of Tenant against the condemning authority on account of the unamortized cost of leasehold improvements paid For by Tenant taken by the condemning authority. If this Lease should he terminated tinder any provision of this Paragraph 19. Rent shall be payable up to the date that possession is taken by the condemning authority and Landlord will refund to Tenant any prepaid unaccrued Rent less any sum then owing by Tenant to Landlord.

 

20.          ACCESS BY LANDLORD. Landlord, its agents and employees shall have access to and the right to enter upon the Leased Premises at any reasonable time and upon reasonable notice during regular business hours except for an emergency to examine the condition thereof, to make any repair's or alterations required to be made by Landlord hereunder, to show the Leased Premises to prospective purchasers, mortgagees or tenants and for any other purpose deemed reasonable by Landlord. In addition, Landlord may post "For Rent” signs on or about the Project advertising the Building and Leased Premises for lease.

 

21.          INTENTIONALLY DELETED.

 

22.          DEFAULT AND REMEDIES.

 

(a)    Each of the following acts or omissions of Tenant or occurrences shall constitute and "Event of Default":

 

(i)          Failure or refusal by Tenant to timely pay Rent or other payments hereunder within two (2) business days following written notice to Tenant of such failure.

 

(ii)        Failure to perform or observe any other covenant or condition of this Lease by Tenant to be performed or observed prior to the expiration of a period of thirty (30) days following written notice to Tenant specifying with particularity such failure (plus an additional reasonable period as may be required by Tenant to cure such default if Tenant shall diligently pursue the cure of such default until the same shall be cured).

(iii)          The filing or execution or occurrence of any of the following with respect to either Tenant or any guarantor of this Lease: a petition in bankruptcy or other solvency proceeding by or against them; or any petition or answer seeking relief under any provision of the Bankruptcy Code or an assignment for the benefit of creditors or composition: or a petition or other proceeding by or against them for the appointment of a trustee, receiver or liquidator of them or any of their property; or a proceeding by any governmental authority for the dissolution or liquidation of them.

 

(b)    This Lease and the Term and estate hereby granted and the demise hereby made are subject to the limitation that if and whenever any Event of Default shall occur, Landlord may, at its option, in addition to till other rights and remedies given hereunder or by law or equity, do any one or more of the following:

 

(i)          Terminate this Lease, in which event Tenant shall immediately surrender possession of the Leased Premises to Landlord.

 

(ii)          Enter upon and take possession of the Leased Premises and expel or remove Tenant and any other occupant therefrom, with or without terminating the Lease.

 

(iii)        Change or alter locks and other security devices at the Leased Premises prohibiting entry into the Leased Premises and deny Tenants access thereto. In connection with such change or alteration, of locks. Landlord shall have no obligation to advise Tenant of the change of locks other than to provide written notice at the Demised Premises of the person Tenant may contact, during normal business hours for the Leased Premises, to acquire additional information. Furthermore, Tenant waives all rights under Section 91 of the Texas Property Code, to which it is otherwise entitled.

 

(iv)       Perform any action required to be performed by Tenant hereunder.

 

(c)    Exercise by Landlord of any one or more remedies hereunder granted or otherwise available shall not be deemed to be an acceptance or surrender of the Leased Premises by Tenant, whether by agreement or by operation of the law, it being understood that such surrender can he affected only by the written agreement of Landlord and Tenant. No such alteration of security devices and no removal or other exercise of dominion by Landlord over the property of Tenant or others at the Leased Premises shall be deemed unauthorized or constitute a conversion. Tenant hereby consenting, after an Event of Default, to the aforesaid exercise of dominion over Tenant's property within the Building. All claims for damages by reason of such re-entry and/or repossession and/or alteration of locks or other security devices are hereby waived, as are all claims for damages by reason of Landlord's compliance with distress warrant, forcible detainer proceeding, sequestration proceedings, or other legal process. Tenant agrees that any re-entry by Landlord may be pursuant to judgment obtained in forcible detainer proceedings or other legal proceedings or without the necessity for any legal proceedings, as Landlord may elect, and Landlord shall not be liable in trespass or otherwise.

 

(d)    In the event Landlord elects to terminate the Lease by reason of an Event of Default. Then, notwithstanding such termination, Tenant shall be liable, as damages to Landlord and not as a penalty, for the breach of this Lease, and shall pay to Landlord the total of (i) the reasonable costs of recovering the Leased Premises and the sum of all Rent and other indebtedness accrued to the date of such termination, (ii) the Rent due hereunder which was suspended or waived because of any "free rent period", (iii) out of pocket expenses of Landlord in constructing the Tenant finish required under this Lease, (iv) all commissions paid by Landlord in connection with this Lease, (v) the amount of the excess of (a) the total Rent and other benefits which Landlord would have received under this Lease for the remainder of the Term (at rates then in effect) together with all other expenses incurred by Landlord in connection with Tenant's default, over (b) the Fair Market Value of the Balance of the Lease Term (as hereinafter defined) as of the time of such breach: and (vi) all other sums of money and damages then owing by Tenant to Landlord. As used herein, the term "Fair Market Value of the Balance of the Lease Term shall mean the difference between art amount equal to all Rent and other benefits payable over the remainder of the Lease Term, minus reasonable rental value of the Leased Premises for the same period. by comparison to other tenants of the Building (or, if there are no comparable tenants in the Building, in comparable buildings) and to other leasing space of comparable size, similarly situated, for a lease term comparable to the remainder of the Term, with such difference discounted to a present value based upon a rare of seven percent (7%) per annum.

(e)    In the event that Landlord elects to repossess the Leased Premises without terminating the Lease, then Tenant shall be liable for and shall pay to Landlord all Rent and other indebtedness accrued to the date of such repossession, plus rent required to be paid by Tenant to Landlord during the remainder of the Term until the date of expiration of the Term as stated in Paragraph 2, diminished by any net sums thereafter received by Landlord through reletting the Leased Premises during said period (after deducting reasonable expenses incurred by Landlord as provided in Subparagraph 22(1) hereof). Actions to collect amounts due by Tenant provided for in this Paragraph may be brought front time to time by Land lord during the aforesaid period, on one or more occasions, without the necessity of Landlord's waiting until expiration of such period; and in no event shall Tenant he entitled to any excess of Rent (or Rent plus other sums) obtained by reletting over and above the Rent provided for in this Lease.

 

(f)    In the case of an Event of Default, Tenant shall also be liable for and shall pay to Landlord in addition to any sum provided to be paid above, (i) reasonable broker's fees incurred by Landlord in connection with reletting the whole or any part of the Leased Premises, (ii) the reasonable cost of removing and storing Tenants or other occupants property; (iii) reasonable cost of repairing, altering, remodeling or otherwise purring the Leased Premises into condition acceptable to a new tenant or tenants, and (iv) all reasonable expenses incurred by Landlord in enforcing Landlord's remedies, including reasonable attorneys' fees. Past due Rent and other past due payments shall bear interest from maturity until paid by Landlord to Tenant at the rate described in Paragraph 40 hereof.

(n)          In the event of foreclosure by any 1ienholder of the Building or Project, Tenant shall not have a right to terminate this Lease, although Tenant hereby understands and agrees that such lienholder who or which forecloses its lien on the Building or Project -shall have the option to terminate this Lease (as such rights are further described in Paragraph 17(b)), unless such lienholder has agreed in writing to the contrary.

 

(o)          Under no circumstances whatsoever shall Landlord or Tenant ever by liable hereunder for consequential damages or special damages.

 

(p)          This Lease is a contract under which applicable law excuses Landlord from accepting performance from (or rendering performance to) any person or entity other than Tenant within the meaning of Sections 365(e) and 365(e)(2) of the Bankruptcy Code. 11 U.S.C. §5101 et seq. ("Bankruptcy Code")

 

(q)          If this Lease is assigned to any person or entity pursuant to the provisions of the Bankruptcy Code. Any and all monies or other consideration payable or otherwise to be delivered in connection with such assignment shall be paid or delivered to Landlord, shall be and remain the exclusive property of Landlord, and shall not constitute property of Tenant or of the Estate of Tenant within the meaning of the Bankruptcy Code. Any and all monies or other considerations constituting Landlord's property under the preceding sentence not paid or delivered to Landlord shall be held in trust for the benefit of Landlord and he promptly paid or delivered to Landlord.

 

(r)          Notwithstanding anything to the contrary, in any bankruptcy filed by or against Tenant, all Rent or other amounts payable by Tenant or on behalf of Tenant to Landlord tinder this Lease, whether or not expressly denominated as rent, shall constitute credit provided to the Bankruptcy Estate which shall have the priority set forth in Section 264(c)(1) of the Bankruptcy Code, and such designation as credit shall be binding on any trustee, assignee, or receiver of Tenant. Notwithstanding the foregoing, should Landlord's Section 364(c)(1) priority not be allowed, then any rents or other amounts due to Landlord under this Lease shall constitute administrative priority allowed pursuant to, inter alia, Section 503(b) of the Bankruptcy Code. Furthermore, Tenant agrees not to seek any extension under Section 365(d) of the Bankruptcy Code.

 

(s)          Any person or entity to which this Lease is assigned pursuant to the provisions of the Bankruptcy Code shall be deemed, without further act or deed, to have assumed all of the obligations arising under this Lease on or after the date of such assignment. Any such assignee shall upon demand execute and deliver to Landlord any instrument confirming such assumption.

 

23.          NONWAIVER. Neither acceptance of Rent by Landlord nor failure by Landlord to complain of any action, non action or default of Tenant shall constitute a waiver of any of Landlords rights hereunder. Waiver by Landlord of any right for any default of Tenant shall not constitute a waiver of any right for either a subsequent default of the same obligation or any other default. Receipt by Landlord of Tenant's keys to the Leased Premises shall not constitute any acceptance or surrender of the Leased Premises.

 

24.          HOLDING OVER. If Tenant should remain in possession of the Leased Premises after the expiration of the Term without execution by Landlord and Tenant of a new lease, then Tenant shall be deemed to be occupying the Leased Premises as a tenant-at-sufferance, subject to all the covenants and obligations of this Lease and at a daily rental of 1.50 times the per day Rent provided hereunder, computed on the basis of a thirty (30) day month. Additionally, Tenant shall pay Landlord for all direct damages sustained by Landlord by reason of Tenant's retention of possession. If any property not belonging to Landlord remains at the Leased Premises after the expiration of the Term of this Lease, Tenant hereby authorizes Landlord to make such disposition of such property as Landlord may desire without liability for compensation or damages to Tenant. Tenant agrees to indemnify and hold Landlord harmless from all suits, actions, liability. loss, damages, and expenses in connection with or incident to any removal, exercise or dominion over, and/or disposition of such property by Landlord. The provisions of this Paragraph do not exclude Landlord's right of re-entry or any other right of Landlord hereunder.

 

25.    NOTICE. Any notice or request which may or shall be given tinder the terms of this Lease shall be in writing and shall be either delivered by hand to the Building management office (for Landlord) or the Leased Premises (by Tenant) or sent by United States Registered or Certified Mail, post prepaid, addressed to the parties hereto at the respective addressed set out opposite their names below. Such address may be changed from time to time by either party giving notice as provided above. Notice shall be deemed given when delivered (if delivered by hand) or when postmarked (if sent by mail).

(a)    If the Project. Building and/or Leased Premises are at any time subject to a mortgage or deed of trust lien, then in any instance in which Tenant gives notice to Landlord alleging default by' Landlord hereunder. Tenant will also simultaneously give a copy of such notice to each Landlord's Mortgagee (provided Landlord or Landlord's Mortgagee shall have provided written notice to Tenant of the name and address of Landlord's Mortgagee), and each Landlord's Mortgagee shall have the right (but not the obligation) to cure or remedy such default during the period that is permitted to Landlord hereunder, plus and additional period or thirty (30) days, and Tenant will accept such curative or remedial action (if any) taken by Landlord's Mortgagee with the same effect as if such action had been taken by Landlord.

(b)    Tenant agrees that from time to time Tenant will deliver to Landlord a statement in writing certifying (i) that this Lease is unmodified and in full force and effect (or if there have been modifications that the same is in full force and effect as modified and identifying the modifications), (ii) the dates to which the Rent and other charges have been paid and (iii) that the Landlord is not in default or specifying each such default of which the person making the certificate may have knowledge, it being understood that any such statement so delivered may be relied upon by any landlord under any ground or underlying lease, or any prospective purchaser, mortgagee or any assignee of any mortgage on the Project or any part thereof.

 

27.          QUIET ENJOYMENT. Provided Tenant complies with its covenants, duties and obligations hereunder, Tenant shall quietly have, hold and enjoy the Leased Premises during the Term as against Landlord, subject to the terms and provisions of this Lease.

 

28.          TIME OF ESSENCE. In all instances where Landlord or Tenant is required hereunder to pay any sum or do any act at a particular indicated time or within an indicated period. it is understood that time is of the essence: and all performance due dates, time schedules and conditions precedent to exercising a right by Landlord or Tenant shall he strictly adhered to without delay except where otherwise expressly provided.

 

29.    MECHANIC'S LIEN. It because of any act or omission of Tenant, its employees, agents, contractors or subcontractors, any mechanic's lien or other lien, charge or order for the payment of money shall be filed against Landlord or against all or any portion of the Leased Premises or the Building. Tenant shall, at its own cost and expense, cause the same to be discharged of record within thirty (30) days after filing thereat and Tenant shall indemnify and save harmless Landlord against and from all reasonable costs and expenses, liabilities, suits, penalties, claims and demands, including, without limitation, reasonable attorneys fees, resulting therefrom.

 

30.    MEMORANDUM OF LEASE. Tenant agrees that, upon written request from Landlord, Tenant will within ten (10) days of such request deliver a copy of this Lease, or, if the Landlord so requests, a Memorandum of this Lease in recordable form to Landlord. Tenant shall not record this Lease or a memorandum thereof without the prior written consent of the Landlord. Any such recording without Landlords prior written consent shall be an Event of Default hereunder.

 

31.          INVALIDITY OF PARTICULAR PROVISIONS. If any clause or provision of this Lease is or becomes illegal, invalid or unenforceable because of present or future laws or any rule or regulation of any governmental or quasi- governmental body or any court holding effective during the Term, the intention of the parties hereto is that the remaining parts of this Lease shall not be affected thereby unless such invalidity is. in the sole determination of the Landlord, essential to the rights of both parties, in which event Landlord has the right, but not tine obligation, to terminate this Lease on written notice to Tenant.

 

32.          WAIVER OF BENEFITS. To the extent permitted by law, tenant waives the benefits of all existing and future rent control legislation and statutes and similar governmental rules and regulations, whether in time of war or not.

 

33.          WAIVER OF TRIAL BY JURY. It is mutually agreed by and between Landlord and Tenant that the respective parties hereto shall and they hereby do waive trial by jury in any action, proceeding or counterclaim brought by either of the parties hereto against the other on any matters whatsoever arising out of or in any way connected with this Lease, the relationship of Landlord and Tenant,  Tenant's use or occupancy of the Leased Premised and any emergency statute or any other statutory remedy.

 

34.          MISCELLANEOUS TAXES. Tenant shall pay prior to delinquency all taxes assessed against or levied upon its occupancy of tine Leased Premises, or upon the fixtures, furnishings, equipment and all other personal property owned by Tenant located on the Leased Premises, if nonpayment thereof shall give rise to a lien on the real estate, and when possible Tenant shall use its best efforts to cause said fixtures, furnishings, equipment and other personal property to be assessed and billed separately from the property of the Landlord. In the event any or all of Tenant's fixtures, Furnishings, equipment and other personal property upon, or Tenant's occupancy of, the Leased Premises shall be assessed and taxed with the property of Landlord. Tenant shall pay to Landlord Tenant's share of such taxes within ten (10) days after delivery to Tenant by Landlord of a statement in writing setting forth the amount of such taxes applicable to Tenant's fixtures, furnishings, equipment or personal property along with a copy of the assessment and tax invoice.

36.    BROKERAGE. Tenant represents and warrants that, except for Mary Caldwell or Caldwell Companies, it has dealt with no broker, agent or other person in connection with this transaction and that no broker, agent or other person brought about this transaction, and Tenant agrees to indemnify and hold Landlord harmless from and against any claims by any other broker, agent or other person claiming a commission or other form of compensation by virtue of having dealt with Tenant with regard to this leasing transaction. The provisions of this Paragraph, in addition to all of Tenant's indemnities and covenants expressly set forth in this Lease, shall survive the termination of this Lease.